August 2014 

TABLE OF CONTENTS

COMMISSION DECISIONS 

08-12-2014 ARMSTRONG COAL COMPANY, 

INC. 

KENT 2010-1156 Page 1947 

08-19-2014 WOLF RUN MINING COMPANY WEVA 2006-853 Page 1951

08-20-2014 TILDEN MINING COMPANY, LC LAKE 2008-503-M Page 1965 

08-21-2014 JIM WALTER RESOURCES, INC. SE 2008-881 Page 1972 

08-22-2014 MCCOY ELKHORN COAL CORP. KENT 2008-260 Page 1987 

08-26-2014 TWENTYMILE COAL COMPANY WEST 2009-241 Page 2009 

08-26-2014 TWENTYMILE COAL COMPANY WEST 2009-1323 Page 2019 

08-28-2014 BRODY MINING, LLC WEVA 2014-82-R Page 2027 

08-29-2014 UMWA O/B/O RONALD M. HOY V. 

EMERALD COAL RESOURCES, LP 

PENN 2012-250-D Page 2088 

ADMINISTRATIVE LAW JUDGE DECISIONS 

08-05-2014 CLOVERLICK COAL COMPANY, 

LLC 

KENT 2012-699R Page 2145 

08-05-2014 S&S DREDGING COMPANY SE 2007-0447-M Page 2163 

08-06-2014 HANSON AGGREGATES NEW 

YORK, INC. 

YORK 2013-66-M Page 2167 

08-07-2014 KNIFE RIVER CONSTRUCTION WEST 2013-0827-RM Page 2176
08-11-2014 VIRGINIA DRILLING COMPANY, 

LLC 

WEVA 2011-0287 Page 2184 

08-15-2014 BRISTOL COAL CORP. VA 2014-95 Page 2198 

08-19-2014 CAM MINING, LLC KENT 2013-196-R Page 2204 

08-20-2014 ORIGINAL SIXTEEN TO ONE 

MINE, INCORPORATED 

WEST 2011-119-M Page 2224 

08-21-2014 PAY CAR MINING, 

INCORPORATED 

WEVA 2013-1027 Page 2256 

08-27-2014 MARFORK COAL COMPANY, INC. WEVA 2014-374 Page 2258 

08-28-2014 RECON REFRACTORY & 

CONSTRUCTION 

WEST 2010-450-M Page 2265 

08-29-2014 UEHLIN QUARRY CENT 2011-1129-M Page 2281

ADMINISTRATIVE LAW JUDGE ORDERS 

08-05-2014 SCOTT CARPENTER WEVA 2013-0025 Page 2311 

08-06-2014 POCAHONTAS COAL COMPANY, 

LLC 

WEVA 2014-569-R Page 2320 

08-07-2014 POCAHONTAS COAL COMPANY, 

INC. 

WEVA 2014-390-R Page 2326 

08-12-2014 QUALITY MATERIALS and CDG 

MATERIALS, INCORPORATED 

WEST 2009-557-M Page 2334 

08-20-2014 REUBEN SHEMWELL v. 

ARMSTRONG COAL CO., INC. 

KENT 2014-0297-D Page 2352

08-21-2014 WHITE OAK RESOURCES, LLC LAKE 2014-650-R Page 2360 

08-22-2014 SEC. OF LABOR O/B/O CHERYL 

GARCIA V. VERIS GOLD U.S.A., 

INC. 

WEST 2014-789-DM Page 2365

08-22-2014 GATEWAY EAGLE COAL CO. WEVA 2014-559 Page 2371 
08-25-2014 BEELMAN TRUCK CO. CENT 2014-47-M Page 2378 

08-25-2014 EMERALD COAL RESOURCES LP, PENN 2011-262 Page 2385 

08-25-2014 OAK GROVE RESOURCES, LLC SE 2013-301 Page 2397 

08-27-2014 ASARCO, LLC WEST 2014-851-M Page 2404 
Review was granted in the following cases during the month of August 2014:

Secretary of Labor, MSHA v. Mize Granite Quarries, Inc., Robert W. Mize; and Clayborn 

Lewis, Both Employed by Mize Granite Quarries, Inc., Docket Nos. SE 2009-401-M, SE 2009-

402-M, SE 2009-553-M, SE 2009-554-M, SE 2010-849-M, SE 2010-850-M. (Judge Moran, 

August 29, 2014) 

Secretary of Labor, MSHA v. Leeco, Inc., Docket No. KENT 2012-166 

Review was not denied in any case during the month of August 2014.
COMMISSION DECISIONS
36 FMSHRC Page 1946
1

 The Commission recognizes that the direction for review was issued in April 2012 and

briefing was stayed at that time. The stay occurred during a period of rapid buildup in the

Commission case load causing regrettable delays in issuing decisions. Having reviewed the

petition for discretionary review (“PDR”) in this case, each Commissioner has determined that

the PDR sets forth the petitioner’s position clearly and completely. Each Commissioner has

further determined that briefing in this case would not aid resolution and would only cause

further delay and expense. For this reason, we are issuing our decision without further briefing. 

The Commission assures every party that appears before it that its positions and arguments are

fully and carefully considered by each Commissioner. 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE NW, SUITE 520N

WASHINGTON, DC 20004-1710

August 12, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : Docket No. KENT 2010-1156

 :

v. :

 :

ARMSTRONG COAL COMPANY, INC. :

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

DECISION

BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of

1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”). At issue is whether the Administrative Law

Judge abused his discretion by issuing a decision approving settlement despite the Secretary of

Labor’s alleged failure to comply with an order to show cause. For the reasons that follow, we

affirm the Judge’s decision.1

I.

Factual and Procedural Background

On February 25, 2010, the Department of Labor’s Mine Safety and Health

Administration (“MSHA”) issued a citation to Armstrong Coal Company for a violation of 30

C.F.R. § 75.325(b) at its Parkway Mine. The Secretary subsequently proposed that Armstrong

36 FMSHRC Page 1947
2

 Rule 66(a) generally requires a Judge to issue an order to show cause before dismissing

a case as a result of a party’s procedural errors. 

pay a civil penalty of $40,300 for the violation. The operator challenged the citation and

proposed penalty, and the matter was assigned to a Commission Administrative Law Judge. 

On August 15, 2011, the parties informed the Judge that they had reached a settlement in

this matter. Order to Show Cause at 1 (Feb. 14, 2012). The Judge subsequently directed the

parties to submit the settlement motion within the next 20 days, consistent with the requirements

of the pre-hearing order. Id. at 1-2. The Secretary failed to submit the settlement motion by this

deadline and instead informed the Judge that he would file the settlement motion by 

September 23, 2011. Id. at 1. However, the Secretary failed to file the settlement motion on that

date as well. Id. On February 2, 2012, the Secretary sent the joint settlement motion to

Armstrong, requesting that it sign and return the settlement motion to the Secretary. On 

February 3, 2012, the operator signed and returned the motion to the Secretary. 

On February 14, 2012, the Judge issued an Order to Show Cause directing the Secretary

to show good cause, within 30 days: (1) why the Secretary had failed to submit the settlement

motion within 20 days of August 15, 2011, (2) why the Secretary had failed to submit the

settlement motion by September 23, 2011, and (3) why this matter should not be dismissed.

Order to Show Cause at 2 (Feb. 14, 2012). On February 21, 2012, within a week of the show

cause order, the Secretary submitted the settlement motion to the Judge. Jt. Mot. to Approve

Sett. Neither the settlement motion nor any other communication to the Judge addressed the

three questions in the show cause order. Id.

On March 15, 2012, the Judge approved the parties’ settlement in a decision approving

settlement. Dec. Approving Sett. at 1-2 (Mar. 15, 2012). Under the terms of the settlement, the

parties agreed to reduce the penalty from $40,300 to $25,000 without any modification to the

citation. Id.

Armstrong filed a petition for discretionary review, which the Commission granted. In

its petition, the operator argues that the Judge abused his discretion by approving the parties’

settlement despite the Secretary’s procedural errors. The operator claims that the Secretary, by

failing to explicitly answer the three questions in the show cause order, failed to respond to the

show cause order. The operator argues that under Commission Procedural Rule 66(a), 29 C.F.R.

§ 2700.66(a), this failure to respond to the show cause order should have resulted in the

Secretary’s default and the dismissal of the Secretary’s petition for assessment of civil penalty.2

In essence, Armstrong argues that the Secretary’s procedural errors should relieve it of liability

for the penalty amount of $25,000, which it had agreed to pay in settlement of the case. 

Armstrong also argues that the Judge’s approval of the settlement was unfair to it, since it

had consistently complied with the Judge’s instructions while the Secretary had repeatedly

disregarded the Judge’s instructions to timely file the settlement motion. The operator does not

dispute that it agreed to the substantive terms of the settlement or claim prejudice due to the

Secretary’s delay in submitting the settlement motion.

36 FMSHRC Page 1948
3

 As discussed above, the operator invokes Rule 66(a) when arguing that the Secretary’s

procedural errors should have resulted in dismissal of the Secretary’s petition for assessment of

civil penalty. However, this rule does not limit in any way the Judge’s discretion to excuse a

party’s procedural errors. 

II.

Disposition

The Commission has recognized that the standard of review for a decision approving

settlement is abuse of discretion. Knox County Stone Co., 3 FMSHRC 2478, 2480 (Nov. 1981)

(“if a judge’s settlement approval . . . is fully supported by the record before him, is consistent

with the statutory penalty criteria, and is not otherwise improper, it will not be disturbed. In

reviewing such cases, abuses of discretion or plain errors are not immune from reversal.”)

The Commission has also recognized that “a judge possesses the power to manage and

control matters pending before him.” Marfork Coal Co., 29 FMSHRC 626, 634 (Aug. 2007). 

“It is a bedrock principle that effective administration of justice requires that judges possess the

capability to manage their own affairs.” Id. Furthermore, the Commission prefers to resolve

cases on the merits instead of procedural defects. See M.M. Sundt Constr. Co., 8 FMSHRC

1269, 1271 (Sept. 1986); Coal Prep Services Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

Accordingly, a Judge has the discretion to excuse procedural errors in appropriate circumstances.

We conclude that the Judge did not abuse his discretion by issuing the decision approving

settlement. Dec. Approving Sett. at 1-2 (Mar. 15, 2012). As stated above, the Judge may excuse

procedural errors by a party. By approving the settlement, the Judge implicitly accepted the

Secretary’s submission of the settlement motion as an adequate response to the show cause

order. Id. In this regard, the Judge excused the Secretary’s technical non-compliance with the

show cause order, i.e., the Secretary’s failure to answer the three questions in the show cause

order.3

As stated above, Armstrong neither disputes the substantive terms of the settlement

agreement nor claims that it was prejudiced by the Secretary’s delay in submitting the settlement

motion. Rather, Armstrong simply seeks to escape liability for the amount it had agreed to pay

36 FMSHRC Page 1949
4

 The operator also argues that it lacked notice that the Secretary had submitted the

settlement motion to the Judge, or that the Judge intended to approve the parties’ settlement

despite the Secretary’s technical non-compliance with the show cause order. In this regard, the

operator points to the Secretary’s failure to serve the operator with a copy of the settlement

motion prior to filing it with the Judge. However, the operator had signed the joint settlement

motion on February 3, 2012, indicating its awareness of, and agreement with, the settlement

motion before the Secretary submitted the motion to the Judge on February 21, 2012. Moreover,

the Judge was not required to notify the operator before approving a duly negotiated settlement.

as art of the settlement agreement.4

 The Judge appropriately exercised his discretion by

approving a duly negotiated settlement that quickly and effectively disposed of this matter.

III.

Conclusion

For the reasons set forth above, we affirm the Judge’s decision approving settlement. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 1950
1

 Commissioner Robert F. Cohen, Jr., is recused in this case.

2

 Section 75.521 states in pertinent part that “[e]ach ungrounded, exposed power

conductor and each ungrounded, exposed telephone wire that leads underground shall be

equipped with suitable lightning arresters of approved type within 100 feet of the point where the

circuit enters the mine.” The S&S terminology is taken from section 104(d)(1) of the Act, 30

U.S.C. § 814(d)(1), which distinguishes as more serious any violation that “could significantly

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

3

 All four Commissioners agree in result, though they split two to two with regard to the

rationale for reversing the non-S&S determination under “Mathies Element Three.”

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

August 19, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : Docket Nos. WEVA 2006-853

 : WEVA 2006-854

v. : WEVA 2007-666

 :

WOLF RUN MINING COMPANY :

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

DECISION

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

These consolidated civil penalty proceedings arise under the Federal Mine Safety and

Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). The lone remaining

issue is whether the Administrative Law Judge erred when he concluded on remand that Wolf

Run Mining Company’s violation of the lightning arrester requirement of 30 C.F.R. § 75.521

was not significant and substantial (“S&S”).2 33 FMSHRC 1197-1202 (May 2011) (ALJ). For

the reasons that follow, that determination is reversed, and the penalty the Judge assessed is

affirmed.3

36 FMSHRC Page 1951
4

 The telephone and paging line ran to approximately 20 phones underground (Tr. 601-

02), as well as to a loudspeaker used for paging (Tr. 623).

5

 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., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v.

NLRB, 305 U.S. 197, 229 (1938)). In reviewing the whole record, an appellate tribunal must

consider anything in the record that “fairly detracts” from the weight of the evidence that

supports a challenged finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997)

(continued...)

I.

Factual and Procedural Background

As discussed in greater detail in the Commission’s earlier decision in these proceedings,

32 FMSHRC 1669 (Dec. 2010), 12 miners died and one was seriously injured in January 2006 as

a result of an explosion caused by lightning at Wolf Run’s Sago Mine, an underground coal mine

in Upshur County, West Virginia. Our earlier decision involved five citations for violations of

the requirements of section 75.521 issued by the Department of Labor’s Mine Safety and Health

Administration (“MSHA”) following its investigation into the Sago accident. Four of those five

citations contained the same type of allegation: a lightning arrester was required but not provided

for a power conductor or communications wire that was located in whole or in part aboveground

on the surface at the Sago Mine, and either ran to, or originated in, an underground portion of the

mine. 32 FMSHRC at 1671.

It is the last of those citations that remains unresolved. Citation No. 7335233 initially

charged Wolf Run with violating the lightning arrester requirement with respect to telephone

paging and trolley phone system wires that ran from the dispatcher’s office and entered the mine

through the track entry. Gov’t Ex. 5. In his original decision, the Judge found that the trolley

wires were grounded, and therefore lightning arresters were not required for them. 31 FMSHRC

640, 664 (June 2009) (ALJ).

With respect to the cited telephone and paging line,4 the Judge found a violation of

section 75.521, because neither of the two conductors within the wires was grounded. 31

FMSHRC at 664. Wolf Run had abated the telephone line violation by installing two lightning

arresters, one for each of the conductors. Tr. 685; Gov’t Ex. 5.

In his initial decision, the Judge declined to uphold the designation of the violation as

S&S, based on his finding that any electrical surge from lightning would destroy the wires before

it entered the mine portal. 31 FMSHRC at 664. In our initial decision, we agreed with the

Secretary that the Judge’s conclusion regarding the capacity of the telephone wire was not

supported by substantial evidence,5

 in that the record only reflected “the voltage normally

36 FMSHRC Page 1952
5

(...continued)

(quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).

6

 With its response brief, Wolf Run submitted a motion that the Commission hear oral

argument in the case. Commissioners were polled and denied that request.

carried by Wolf Run’s telephone wires and did not discuss the capacity of such wires.” 32

FMSHRC at 1687. We also held that it was error for the Judge to fail to address MSHA

Engineer Kevin Hedrick’s statement that a surge of electrical energy from lightning could enter a

mine via the wire before that energy destroyed the wire. Id. Consequently, we vacated and

remanded, among other issues, the Judge’s non-S&S finding for his consideration of the overall

record with regard to whether the violation of section 75.521 was S&S. Id.

In his remand decision, the Judge found that there was a potential for such a surge to

enter the mine. However, he again concluded the violation of section 75.521 was not S&S,

because of the low probability of lightning striking the telephone wires and the fact that the

absence of arresters does not increase the likelihood of such a strike. 33 FMSHRC at 1201. 

Both parties petitioned for review of various aspects of the Judge’s remand decision. We limited

our grant of review to whether the Judge erred in concluding that the lack of lightning arresters

with respect to the telephone wires was not an S&S violation.6

II.

Disposition

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

§ 814(d)(1), and refers to more serious violations. A violation is S&S if, based on the particular

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

will result in an injury or illness of a reasonably serious nature. See Cement Div., Nat’l Gypsum

Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the

Commission further explained:

In order to establish that a violation of a mandatory safety

standard is significant and substantial under National Gypsum, the

Secretary of Labor must prove: (1) the underlying violation of a

mandatory safety standard; (2) a discrete safety hazard – that is, a

measure of danger to safety – contributed to by the violation; (3) a

reasonable likelihood that the hazard contributed to will result in

an injury; and (4) a reasonable likelihood that the injury in

question will be of a reasonably serious nature.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir.

1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving

Mathies criteria). Under the Commission’s Mathies test, it is the contribution of the violation at

36 FMSHRC Page 1953
7

 As the prevailing party below, Wolf Run may urge in support of the decision under

review even those arguments that the Judge considered and rejected. See, e.g., Sec’y on behalf of

Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1529 (Aug. 1990).

issue to the cause and effect of a hazard must be significant and substantial. U.S. Steel Mining

Co., 6 FMSHRC 1834, 1836 (Aug. 1984).

Here, the Judge concluded that the first, second, and fourth elements of Mathies had been

satisfied, because “on balance, the Secretary has demonstrated the subject telephone wire has the

capacity to transmit a lightning surge underground that poses a risk of serious injury” to miners

working there. 33 FMSHRC at 1199. The Judge found that the Mathies test was not entirely

satisfied, however, because “the failure to equip exposed conductors with arresters does not

increase the likelihood of a lightning strike.” Id. at 1201.

A. Mathies Element One

At this point there is no dispute that there was a violation of the lightning arrester

requirement of section 75.521. In our initial decision, we affirmed the Judge’s original decision

that a violation had been established with respect to the subject telephone wire. 32 FMSHRC at

1679-82.

B. Mathies Element Two

With regard to the second Mathies element of a measure of danger to safety contributed

to by the violation, Wolf Run agrees with the Judge that the proper inquiry is whether the

absence of lightning arresters would result in electrical current being carried into the mine. The

Judge stated that “[t]he hazard posed by the subject section 75.521 violation is the potential

transmission of a lightning surge underground through telephone power conductors on the

surface that are not equipped with arresters.” 33 FMSHRC at 1201. Wolf Run argues, however,

that substantial evidence does not support the Judge’s determination that the telephone line in

question had the capacity to transmit dangerous amounts of electrical energy underground.7

The general danger that lightning poses if provided a path to travel underground was

addressed in our first decision in this case. Summarizing the evidence and findings below, we

stated that

a lightning strike from as much as a mile away can cause a surge

of energy on a power conductor. Id. at 645. Even when it does not

hit the conductors directly, such a strike can induce thousands of

volts and amps of electric current into a power conductor. Tr. 238-

40. The purpose of a lightning arrester required by section 75.521

is to minimize the amount of such energy entering into the

underground portions of the mine. 31 FMSHRC at 643.

36 FMSHRC Page 1954
8

 Below, the Secretary submitted an exhibit consisting of the 35 section 75.521 citations

or orders that had been issued to other mines over the previous five years alleging that required

lighting arresters were absent with respect to communication wires, including a number of which

that had been designated S&S. Gov’t Ex. 26.

Unless a power conductor entering a mine from the outside

is protected by a lightning arrester, the excess energy from a

lightning strike on the conductor would not be dissipated into the

ground, but could instead travel into the mine via the conductor. 

Id. at 645. This could energize the frames of equipment, resulting

in a shock or electrocution hazard, and the energy could cause an

arcing that would pose a fire hazard and an ignition source for

methane. Id.

32 FMSHRC at 1670-71 (footnote omitted).

The Judge based his determination that such a danger is posed by a telephone wire

lacking a required lightning arrester on the testimony of MSHA Engineer Hedrick. Hedrick

stated that lightning, either striking directly or even just nearby, has the potential to elevate the

amount of electricity flowing through a telephone wire, and that therefore an arrester is needed to

provide a path to ground for the excess electricity and reduce the amount of energy that can go

underground via the telephone wire. 33 FMSHRC at 1198 (citing Tr. 631).8

 The Judge also

credited Hedrick’s testimony that even if the power surge became so great that it eventually

destroyed the wire and thus disconnected points further along the wire, the power that had

already flowed to those points prior to the destruction would continue to pose a danger in the

mine for a time afterwards. Id. at 1198-99 (citing Tr. 662). The Commission has recognized that

a Judge’s credibility determinations are entitled to great weight and may not be overturned

lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh

Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981).

Here, Wolf Run argues that the Judge should not have credited Hedrick’s testimony

because neither he nor any other witness could establish how much current would flow via the

telephone wire into the mine due to a lightning strike occurring in the absence of a lightning

arrester. The operator maintains that such evidence is necessary to determine whether the lack of

an arrester posed a hazard in this instance.

The record in this case clearly establishes that the amount of electrical energy produced

by a lightning strike can vary greatly, depending on the strength of the strike and its proximity. 

 Tr. 310-12, 649. Moreover, it is not possible to predict which path the energy from it will

travel. Tr. 314-16, 379, 538. Consequently, the maximum amount of energy a lightning arrester

will need to prevent from traveling through a specific wire is simply not predictable, and

therefore the lack of a specific amount is not a basis for overturning the Judge’s crediting of

Hedrick’s testimony.

36 FMSHRC Page 1955
9

 Similarly, we reject Wolf Run’s argument that the hazard posed by the lack of an

arrester in this instance cannot be established because the amount of electricity that an arrester

would divert into the ground is unknown. The Judge credited Hedrick’s testimony regarding the

efficacy of lightning arresters in reducing the amount of energy that went underground in the

event of a lightning strike. 33 FMSHRC at 1198 (citing Tr. 631).

Moreover, Wolf Run’s argument is essentially a collateral attack on the terms of section

75.521. The regulation as it pertains to power conductors originated as section 305(p) of the

Federal Coal Mine Health and Safety Act of 1969 (“Coal Act”), and was carried over as the

same section of the Mine Act, 30 U.S.C. § 865(p). The statutory language was promulgated as

section 75.521 by a predecessor to MSHA, the Department of Interior’s Bureau of Mines, after

the enactment of the Coal Act. 35 Fed. Reg. 17,890, 17,910 (Nov. 20, 1970). The mandatory

standard was then expressly extended in 1973 to include ungrounded, exposed telephone wires. 

See 38 Fed. Reg. 4974, 4975 (Feb. 23, 1973).

In proposing to extend the reach of the mandatory standard, the Bureau of Mines cited

“operating experience gained to date under the [Coal Act], particularly since promulgation [of

the 1970 regulations], and “determined [it] to be desirable to propose . . . revisions of several

mandatory standards for electric equipment.” 37 Fed. Reg. 11,777 (June 14, 1972). The

agency’s proposal went on to state that with regard to the lightning arresters that are required to

be used in connection with ungrounded, exposed power conductors leading underground, “it is

desirable that suitable, approved lightning arresters also be required on ungrounded, exposed

telephone wires which lead underground.” Id. at 11,778.

The danger posed by lightning-induced power surges on telephone wires was clearly

enough to persuade MSHA’s predecessor to bring them within the coverage of section 75.521. 

Accordingly, we conclude that the absence of evidence on the amount of current that would flow

through a specific wire in the event of a lightning strike does not prevent a finding that the wire

in question had the potential to carry dangerous amounts of current underground.9

The record also contains evidence that the anyone using the phone system during the time

that lightning-induced excess energy was coursing over the unprotected telephone wires would

be subject to the risk of an electrical shock. Tr. 635-36, 682. Consequently, we find that

substantial evidence supports the Judge’s finding that the Secretary satisfied the second Mathies

element in this instance.

36 FMSHRC Page 1956
10 The Chairman and Commissioner Nakamura have cast the occurrence of a lightning

strike as something that must be expressly assumed for the purposes of our S&S analysis. We

disagree with this approach.

First, it is not necessary to assume anything. Congress in the Mine Act and the Secretary

in rulemaking have determined that lightning may strike in close proximity to underground

(continued...)

C. Mathies Element Three

It is with regard to the third Mathies element that the Judge found that the Secretary had

failed to establish that the violation of section 75.521 was S&S in this instance. However, the

Judge’s framing of the issue was in error. He stated that:

The question is whether it is reasonably likely that the hazard

created by this violation will result in a lightning strike event in

which there is serious injury. Resolution of this question is

dependent on the contribution of the absence of arresters to the

likelihood of a lightning strike that results in electrocution.

. . . . [T]he failure to equip exposed conductors with

arresters does not increase the likelihood of a lightning strike.

Although the absence of arresters does affect the hazard associated

with lightning, their absence does not contribute to the likelihood

of the occurrence of lightning. Since a lightning strike in

proximity to a particular location is a rare event, the Secretary has

failed to demonstrate that it is reasonably likely that the failure to

install lightning arresters will result in an injury or illness of

reasonably serious nature.

33 FMSHRC at 1201 (citations omitted) (emphasis in original).

The issue is not whether the absence of arresters on the telephone wires will affect the

frequency or severity of lightning strikes on or in proximity to the wires. Lightning strikes are

the result of atmospheric conditions entirely outside of the control of the operator and, as the

Sago accident demonstrated, can occur just about anywhere, in varying degrees of intensity, and

at any time with little or no warning. Tr. 294, 649. Thus, the frequency, proximity, and

magnitude of lightning strikes are wholly unrelated to an operator’s compliance with section

75.521 to protect against their effects, and the Judge erred in weighing such a consideration in

his S&S analysis.

In addressing the Judge’s determination to give dispositive weight to his finding that a

lightning strike in proximity to a particular location is a rare event, the Secretary requests that we

assume the occurrence of a lightning strike in determining whether a violation of section 75.521

is S&S. However, adopting such an assumption is not necessary to resolve this case.10

36 FMSHRC Page 1957
10(...continued)

mines thereby presenting a danger to underground miners. A lightning strike is part of the

operative context for evaluating the effectiveness of devices intended to deal with lightning

strikes. Furthermore, as a matter of definition, we have noted that it is not possible to address

the performance of safety features designed to arise in emergencies or highly-unusual situations

without including the context. See Cumberland Coal Res., L.P., 33 FMSHRC 2357, 2366 (Oct.

2011) (“The Commission has never required the establishment of the reasonable likelihood of a

fire, explosion, or other emergency event when considering whether violations of evacuation

standards are S&S.”), aff’d on other grounds, 717 F.3d 1020 (D.C. Cir. 2013); see also Maple

Creek Mining, Inc., 27 FMSHRC 555, 563-64 & n.5 (Aug. 2005).

Second, while there may be little apparent harm in assuming a lightning strike, which

would have the same analytical utility in this case as our approach, expressing assumptions of

certain facts or conditions when such assumptions are not necessary may embolden the Secretary

to seek the assumption of other events, occurrences, or conditions. Without consideration of all

possible permutations arising from this invitation to mischief, we cannot articulate a principled

limit upon them. We therefore would hold that occurrence of a lightning strike is a necessary

part of the context for evaluating measures that the Secretary has deemed prudent and necessary,

whether or not it is likely to occur at a specific moment in time.

First of all, there is no record evidence that supports the Judge’s finding with respect to

the Sago mine, because neither party submitted evidence on the issue. This is entirely

understandable, given the nature of the accident that precipitated this proceeding.

Secondly, Congress, in passing the Coal Act and then the Mine Act, clearly did not

consider the danger posed by a lightning strike on mine property to be remote. As previously

outlined herein, it included the forerunner to section 75.521 in both of those statutes in

substantially similar form.

Lastly, the Judge, in essence, held that no violation of the lightning arrester requirement,

as well as any other lightning protection standard, could be S&S, regardless of the circumstances

surrounding the violation and the number of miners exposed to the dangers resulting from

lightning-induced energy having an uninterrupted conduit into the underground mine

atmosphere. There is no basis for such an interpretation of S&S under the Mine Act, nor is there

Commission precedent for such an application of the Mathies test. However rare a condition

may be, if a mandatory standard addresses it, the S&S provision of the Mine Act is potentially

applicable and the danger posed by the violation of the standard must at least be considered.

Even if this were a case in which the infrequency of lightning at or in dangerous

proximity to the location in question had been established below, in an attempt to demonstrate

that there was a minimal risk of harm posed by the violation of section 75.521, other

considerations go into determining whether a violation was S&S under the circumstances. In

this instance, such considerations include the expanse of cable or wire left unprotected under the

standard and the number of miners subject to exposure to the dangers of a lightning-induced

36 FMSHRC Page 1958
power surge via the cable or wire. Evidence was presented below on these issues, but it was not

considered by the Judge in determining that the violation was not S&S.

Here, the undisputed evidence is that no lightning arresters were provided for the

approximately 400 feet of telephone wire than ran to the mine portal. Tr. 613, 625-26; Gov’t Ex.

11, 24. Thus, the amount of exposed wire was several times that which was permissible under

section 75.521, which provides that a lightning arrester may be no more than 100 feet from

where the circuit enters the mine. This had the effect of greatly increasing the risk posed by the

lack of required lightning arresters. Tr. 633-34.

 Similarly left unaddressed by the Judge was the unrebutted evidence regarding the

underground telephone system and the use of the system. MSHA Electrical Engineer Russell

Dresch, in testifying why he designated the citation as S&S with respect to the telephone wires,

explained that it was designated as such because there was a discrete safety hazard associated

with the violation in this instance. Tr. 681. Dresch testified that the key factor was that the

wires were for

the telephone system. The communication system is used often. 

There is a dispatcher on the surface. He has to be in

communication with the underground . . . all through the day. 

There are numerous reasons to use that system. So it’s reasonably

likely that miners will be using that system.

Tr. 681-82. Throughout the hearing the Secretary’s witnesses had stressed that the system was

“hard-wired,” and Dresch explained that meant that anyone using any of the approximately 20

phones would be in contact with the system’s electrical circuit and thus would be at increased

risk for shock due to the absence of the lightning arrester required by section 75.521. Tr. 601-

04, 683. 

We have noted that an inspector’s judgment is an important element in an S&S

determination. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278 (Dec. 1998); Mathies, 

6 FMSHRC at 5 (citing Nat’l Gypsum, 3 FMSHRC at 825-26); see also Buck Creek Coal, 

52 F.3d at 135-36 (stating that ALJ did not abuse his discretion in crediting opinion of

experienced inspector). At a minimum, the judge should have addressed the explanation

provided by Dresch.

While a remand to the Judge to consider the surrounding circumstances and, especially,

the testimony of the MSHA witness who designated the citation as S&S is an option, the

Secretary has requested that we reverse the Judge with respect to the third Mathies element. 

Given the record evidence in this case, we agree. See American Mine Servs., Inc., 15 FMSHRC

1830, 1834 (Sept. 1993) (remand not necessary when record supports no other conclusion).

D. Mathies Element Four

As for the fourth Mathies element, the judge found a reasonable likelihood that an injury

resulting from a lightning-induced power surge over the wires and underground mine telephone

36 FMSHRC Page 1959
system would be of a reasonably serious nature. 33 FMSHRC at 1199. Our review of the record

evidence discloses substantial evidence in support of the Judge’s conclusion.

MSHA Engineer Hedrick explained that anyone using a phone when lightning-induced

energy coursed over the telephone wire would be subject to electrical shock. Tr. 635-36. 

Another member of the MSHA electrical investigation team at Sago, James Honaker, cited an

instance in which a miner, while using a telephone two miles underground, suffered a shock. 

Tr. 836.

As for the seriousness of such shocks, MSHA Engineer Dresch testified that it could rise

to electrocution levels. Tr. 682. MSHA Inspector Arthur Wooten described the factors that go

into a person’s susceptibility to electrocution and identified an instance in which electrical

current as low as 32 volts had killed a miner. Tr. 310-11.

Because we have upheld the Judge on three of the Mathies elements and overturned his

determination on the fourth, we reverse his conclusion that the Secretary failed to establish that

Wolf Run’s failure to equip the telephone wires with lightning arresters in violation of section

75.521 was S&S. The Judge, despite not agreeing with the Secretary that the violation was S&S,

assessed the $440 penalty the Secretary proposed. 33 FMSHRC at 1202. The Secretary has not

requested a reassessment of the penalty and therefore we see no need to remand this case.

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 1960
1

 The Commission decision in Cumberland also assumed an emergency, but not as

(continued...)

Chairman Jordan and Commissioner Nakamura, concurring:

We agree with our colleagues that the Judge erred in finding that the lightning arrester

violation at issue was not significant and substantial. However, because in

analyzing the issue of whether a violation of the lightning arrester standard was S&S, we would

assume the existence of a lightning strike.

Under the S&S test articulated by the Commission in Mathies Coal Co., 6 FMSHRC 1, 3

(Jan. 1984), the Secretary must demonstrate, among other things, a “reasonable likelihood that

the hazard contributed to will result in an injury.” Here, the hazard is shock or electrocution. 

32 FMSHRC at 1670-71. As the Secretary correctly argues, however, the lightning arrester

safety standard is designed to protect miners from these hazards only in the event of a lightning

strike. PDR at 19. Because the standard serves no purpose in the absence of lightning, it makes

sense to assume the existence of a lightning strike when determining whether the lack of a

lightning arrester is a significant and substantial violation. The relevant question then becomes

whether, given the occurrence of lightning, the failure to have lightning arresters is reasonably

likely to result in a serious injury or death.

The Judge in this case, however, demanded that the Secretary produce evidence of the

possibility of a lightning strike. Since this is an impossible task, we agree with our colleagues

that the Judge erred in requiring the Secretary to establish the reasonable likelihood of a

lightning strike. His approach makes it almost impossible for the Secretary to successfully

charge a lightning arrester violation as S&S. We doubt that Congress, which thought to include

lightning arrester requirements in the Coal Act and Mine Act, slip op. at 6, would have approved

such an outcome.

The lightning arrester standard exists to protect miners only in situations in which there is

a lightning strike, so it is appropriate to assume the existence of a lightning strike in this case. 

See Manalapan Mining Co., 18 FMSHRC 1375, 1384 (Aug. 1996) (holding that “the assumption

sought by the Secretary (the existence of a fire or explosion) is to evaluate the effect of the

violation (an inadequate fire deluge system) under the circumstances and conditions in which the

standard was intended to provide protection”) (separate opinion of Chairman Jordan and

Commissioner Marks). Forcing the Secretary to rely on meteorological evidence to prove the

likelihood of lightning, as the Judge here seemed to do, diverts us from the true inquiry in this

case.

The D.C. Circuit decision in Cumberland Coal Resources, LP v. FMSHRC, 717 F.3d

1020 (D.C. Cir. 2013), which affirmed our ruling below, is persuasive precedent for assuming a

lightning strike in lightning arrester cases where S&S is at issue. In Cumberland, the operator

was charged with failure to maintain adequate lifelines in the mine’s escapeways. In upholding

our S&S determination, the court assumed the existence of an emergency when evaluating the

significant and substantial nature of the violation.1

 In so doing, the court deferred to the

36 FMSHRC Page 1961
1

(...continued)

explicitly as in the court of appeals opinion. In our decision finding that the lifeline violation

was S&S, we stated that “with regard to evacuation standards, the applicable analysis under

Mathies involves consideration of an emergency.” 33 FMSHRC 2357, 2366 (Oct. 2011).

2

 Indeed, lightning striking a particular location is considered both proverbially and

statistically rare and unpredictable. Its occurrence is not only independent of the violation at

issue, but independent of the operator’s mining operations. In legal parlance, it is described as

an “act of God.” Given this nature, it is particularly appropriate and reasonable to assume the

occurrence of a lightning strike in determining whether the violation is S&S.

Secretary’s reasonable interpretation of the significant and substantial provision of the Mine Act

(section 104(d)(1), 30 U.S.C. § 814(d)(1)). 717 F.3d at 1026.

We are mindful that the standard in Cumberland was an emergency safety standard,

while the lightning arrester standard in this case is not. The reasoning of the court, however, is

completely apposite in this situation as well. In Cumberland, the court observed that if

decisionmakers were told not to assume an emergency when deciding whether a violation of an

emergency safety standard was S&S:

It would appear unlikely that any violation of those standards

would ever be “significant and substantial.” That is, the violation

of those standards apparently would never, or at least rarely,

contribute to the existence of the emergency so that the scale

would be loaded against the finding. Given that the violation of

those standards could be expected to have serious, indeed tragic,

consequences, it is reasonable for the Secretary to interpret the

statute and his own regulations to avoid that odd result.

Id. at 1026-27.

The Judge’s approach in this case leads to the result that the Cumberland court, in the

quotation set forth above, was determined to avoid. And, just as the D.C. Circuit acknowledged

that “the likelihood of an emergency will usually have nothing to do with the violation of the

emergency safety standard,” id. at 1027, the likelihood of a lightning strike will usually have

nothing to do with the violation of a lightning arrester standard.2

Our colleagues state that adopting an assumption of a lightning strike is not needed to

resolve this case. Slip op. at 7. They find that the third prong of the test is met because of

evidence regarding: (1) the expanse of cable or wire left unprotected; (2) the number of miners

subject to exposure; (3) the frequent use of the telephone system; and (4) that the system was

“hard-wired.” Indeed, these are relevant factors, but only in the presence of lightning. 

In addition, more puzzling is our colleagues’ assertion that “[e]ven if this were a case in

which the infrequency of lightning at or in dangerous proximity to the location in question had

36 FMSHRC Page 1962
been established below, in an attempt to demonstrate that there was a minimal risk of harm posed

by the violation of section 75.521, other considerations go into determining whether a violation

was S&S under the circumstances.” Slip op. at 8 (emphasis added). We fail to understand how

the violation could be sustained as S&S if it could pose only a “minimal risk of harm,” as S&S

violations are inherently more serious.

For the reasons set forth above, we would reverse the Judge’s determination that the

violation of section 75.521 was not S&S and affirm the penalty assessed by the Judge.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

36 FMSHRC Page 1963
Distribution:

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1500

401 Liberty Avenue

Pittsburgh, PA 15222

Arthur M. Wolfson, Esq.

Jackson Kelly PLLC

Three Gateway Center, Suite 1500

401 Liberty Avenue

Pittsburgh, PA 15222

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Edward Waldman, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Administrative Law Judge Jerold Feldman

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

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

Washington, D.C. 20004

36 FMSHRC Page 1964
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

August 20, 2014

SECRETARY OF LABOR, : 

 MINE SAFETY AND HEALTH : 

 ADMINISTRATION (MSHA) : 

 : 

v. : Docket No. LAKE 2008-503-M 

 : 

TILDEN MINING COMPANY, LC : 

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

DECISION

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”). At issue is whether the Administrative Law 

Judge correctly determined (1) that extension cords should be considered part of a grounding 

system subject to continuity and resistance testing under 30 C.F.R. § 56.120281 and (2) that the 

Secretary’s position requiring such testing did not constitute a substantive change in the standard 

requiring notice-and-comment rulemaking. 

For the reasons that follow, we conclude that grounding systems include extension cords 

and power cables, and that the Secretary did not need to undertake rulemaking. Accordingly, we 

affirm the Judge’s decision.

1

 Section 56.12028 provides: 

Continuity and resistance of grounding systems shall be tested 

immediately after installation, repair, and modification; and annually 

thereafter. A record of the resistance measured during the most recent 

tests shall be made available on a request by the Secretary or his duly 

authorized representative. 

30 C.F.R. § 56.12028. 

36 FMSHRC Page 1965
I.

Factual and Procedural Background

Tilden Mining Company, LC, operates the Tilden Mine, a surface iron-ore mine in 

Michigan. On April 16, 2008, an inspector from the Department of Labor’s Mine Safety and 

Health Administration (MSHA) issued Citation No. 6400301 to Tilden, and on April 20, 2008, 

issued Citation No. 6400312 to Tilden. Both citations alleged a violation of 30 C.F.R. 

§ 56.12028 for failing to test and record the resistance of extension cords used as part of the 

grounding system at the mine. Tilden subsequently contested the citations and proposed 

penalties before a Commission Administrative Law Judge. 

 

On April 18, 2011, the Judge affirmed the citations in a decision on cross-motions for 

summary decision. 33 FMSHRC 876, 884-85 (Apr. 2011) (ALJ). The Judge ruled that 

extension cords and power cables must be tested for continuity and resistance because they are 

integral components of any grounding system. The Judge reasoned that a grounding system is 

only as protective as its weakest link, and that it is critical to ensure that all the necessary 

components of the grounding system are fully functional, including extension cords and cables. 

Id. at 881. 

 

The Commission granted Tilden’s petition for discretionary review. 

II. 

Disposition

 

On review, Tilden claims that the Judge’s holding conflicts with Hibbing Taconite Co., 

21 FMSHRC 346, 355 (Mar. 1999) (ALJ), in which the Judge declined to require continuity and 

resistance testing on extension and power cords under section 56.12028. The operator further 

contends that the Judge in the instant case failed to recognize that grounding systems are 

stationary and involve ground beds and similar fixed facilities, while extension and power cords 

are mobile, scattered all over a facility, and capable of being plugged and unplugged routinely. 

 

The operator also asserts that even if MSHA’s new rule is interpretive in nature, 

rulemaking was required because the rule constituted a significant change in interpretation. The 

operator argues that MSHA’s original 1988 Program Policy Manual (PPM) stated that continuity 

and resistance testing “do[...] not apply to grounding conductors in trailing cables, power cables, 

and cords which provide power to portable or mobile equipment” and that MSHA’s 1994 

Program Policy Letter (PPL) subsequently reversed its position on this issue. TM Br. at 13-14, 

quoting PPM at 52 (1988). The operator also argues that MSHA’s allegedly inconsistent 

interpretations and lack of enforcement under its current interpretation render the Secretary's 

position unreasonable and unworthy of deference. 

 

Finally, Tilden claims that it did not have notice that grounding systems could include 

extension cords without any notice-and-comment rulemaking because it reasonably relied upon 

the Hibbing Taconite decision to the contrary. 

36 FMSHRC Page 1966
A. The Secretary’s interpretation of section 56.12028 as including extension cords 

and power cables within the definition of “grounding systems” is reasonable and 

entitled to deference. 

The term “grounding systems” is undefined in the standard, and the standard is silent 

with regard to whether extension cords and power cables are part of a “grounding system.” 

Accordingly, we must defer to the Secretary’s interpretation of the standard as long as it is 

reasonable. Wolf Run Mining Co., 32 FMSHRC 1669, 1678–82 (Dec. 2010) (examining whether 

Secretary’s interpretation of own regulation is reasonable and entitled to deference); 

Consolidation Coal Co., 14 FMSHRC 956, 966-69 (June 1992); Bowles v. Seminole Rock & 

Sand Co., 325 U.S. 410, 414 (1945); Sec’y of Labor v. Cannelton Indus., Inc., 867 F.2d 1432, 

1435 (D.C. Cir. 1989). 

Here, we conclude that the Secretary’s interpretation is reasonable. In order for a 

grounding system to function, it is essential that extension cords and power cables work 

properly. Extension cords supply power to tools and to portable and mobile equipment. The 

cords, along with all other aspects of the grounding system, must be tested for continuity, in 

order to prevent electric shocks to miners. Conducting a continuity test assures that the 

equipment being used is connected directly to the ground prong, and that the grounding circuit is 

complete. A grounding system is only as protective as its weakest link, which is why it is critical 

to ensure that all the necessary components of the grounding system are fully functional, 

including extension cords and cables. Otherwise, the grounding system will cease to function. 

Cf. Daanen & Janssen, Inc., 20 FMSHRC 189, 193 (Mar. 1998) (“Because the definition of the 

term ‘system’ entails an interrelationship of component parts, it follows that for the system to be 

considered functional, each of its component parts must be functional.”). 

We find unpersuasive the operator’s argument that the definition of “grounding systems” 

in the 1994 PPM, when read in conjunction with the three sections preceding section 56.12028, 

shows that extension cords and cables were not contemplated to be within section 56.12028. The 

three sections preceding section 56.12028 focus on specific types of equipment that must be

connected to a grounding system, as opposed to the definition of “grounding system” itself.2

 

Similarly unavailing is the operator’s argument that “grounding systems” are stationary 

and involve ground beds and similar fixed facilities, and therefore do not include extension cords 

 2

 The three sections preceding section 56.12028 require the following: 

 

All metal enclosing or encasing electrical circuits shall be grounded or 

provided with equivalent protection. This requirement does not apply to 

battery-operated equipment. 30 C.F.R. § 56.12025. 

Metal fencing and metal buildings enclosing transformers and switchgear 

shall be grounded. 30 C.F.R. § 56.12026. 

Frame grounding or equivalent protection shall be provided for mobile 

equipment powered through trailing cables. 30 C.F.R. 

§ 56.12027. 

36 FMSHRC Page 1967
and power cables, which are mobile and scattered all over a facility and are capable of being 

plugged and unplugged routinely. This distinction is contradicted by the language of the 

standards. Section 56.12025 broadly requires grounding of any metal-encased electrical circuit. 

Furthermore, section 56.12027 applies to any mobile piece of equipment powered by trailing 

cables. Therefore, any distinction between the stationary nature of ground beds and the mobile 

nature of extension cords is unpersuasive.

 

We also reject the operator’s argument that MSHA’s application of extension cords to 

“grounding systems” imposes an undue burden on mine operators. Although Tilden asserts that, 

under the Secretary’s interpretation, operators would be required to test thousands of additional 

cords, Tilden offers no factual support for this claim.3

 Accordingly, we conclude that the Secretary's inclusion of extension cords within the 

definition of “grounding systems” is reasonable and deserves deference. 

B. The Secretary’s application of extension cords and power cables to “grounding 

systems” is an interpretive rule that did not require notice-and-comment 

rulemaking.

 

We find that the Secretary’s approach did not require additional rulemaking. The 

Administrative Procedure Act (APA) has several exceptions to the mandatory proposed 

rulemaking procedures for administrative agencies. The relevant exception here is that noticeand-comment rulemaking procedures do not apply to “interpretative rules,” as opposed to 

legislative rules, which would require notice-and-comment rulemaking. 5 U.S.C. 

§ 553(b)(3)(A), (B). A legislative rule is one that substantively amends the language of a 

regulation, whereas an interpretive rule clarifies or explains the regulation’s existing language. 

See, e.g., Philips Petroleum Co. v. Johnson, 22 F.3d 616, 619-21 (5th Cir. 1994); Gibson Wine 

Co. v. Snyder, 194 F.2d 329, 331-33 (D.C. Cir. 1952). 

We agree with the Judge that the Secretary’s application of extension cords to “grounding 

systems” clarifies and explains the language of the standard, and is thus an interpretive rule. 33 

FMSHRC at 881-83. As stated above, the Secretary’s approach is a reasonable interpretation of 

section 56.12028. Accordingly, it did not require notice-and-comment rulemaking. 

 

 3

 The Secretary states that the term “installation” in section 56.12028 only requires that 

continuity and resistance testing be done when an extension cord or cable is first put into use, as opposed 

to every time the cord or cable is subsequently plugged in. He further states that this interpretation does 

not impose an undue burden. See Sec. Response Br. at 14. 

36 FMSHRC Page 1968
 

C. The existence of the 1988 PPM does not require the Secretary to undertake 

notice-and-comment rulemaking. 

The fact that the Secretary’s interpretation is arguably inconsistent with his prior 

interpretation in the 1988 PPM does not require the Secretary to undertake notice-and-comment 

rulemaking. The operator argues that the 1988 PPM had expressly exempted “grounding 

conductors in trailing cables, powers cables, and cords which provide power to portable or 

mobile equipment” from continuity and resistance testing requirements, and that MSHA’s 1994 

PPL subsequently reversed its position on this issue. TM Opening Br. at 13-14, quoting PPM at 

52 (1988). Tilden relies on the D.C. Circuit’s decision in Alaska Professional Hunters v. 

Federal Aviation Administration, 177 F.3d 1030, 1034 (D.C. Cir. 1999), which states that 

“[w]hen an agency has given its regulation a definitive interpretation, and later significantly 

revises that interpretation, the agency has in effect amended its rule, something it may not 

accomplish without notice and comment.” 

The operator’s reliance on Alaska Hunters is misplaced. That decision is readily 

distinguishable from the present case.4

 Alaska Hunters has been interpreted by the D.C. Circuit 

narrowly. Under the decision, a requirement for notice-and-comment rulemaking was only 

triggered when an agency’s previous interpretation was sufficiently definitive to justify a 

regulated party detrimentally relying on it. See, e.g., Air Transp. Ass’n of America, Inc. v. FAA, 

291 F.3d 49, 56-58 (D.C. Cir. 2002); Honeywell Int’l, Inc. v. Nuclear Regulatory Comm’n, 628 

F.3d 568, 579-80 (D.C. Cir. 2010). MSHA’s original 1988 PPM was not definitive. Moreover, 

the operator cannot show substantial and justifiable reliance because it only alleges reliance on a 

non-precedential decision of an Administrative Law Judge rather than on MSHA’s prior 

interpretation. 

MSHA’s 1988 interpretation was not definitive because it was internally inconsistent and 

therefore ambiguous with respect to whether section 56.12028 required annual testing of cables 

and cords. The operator’s assertion that the 1988 PPM excepted the cables at issue here, stating 

that the annual test “does not apply to grounding conductors in trailing cables, power cables and 

cords,” was contradicted by the very next sentence in the PPM, which stated that the same cables 

“require[d] more frequent testing,” even though such testing was not mandated under any other 

standard.5

 PPM at 52 (1998). MSHA’s transition from the ambiguous interpretation in the 1988 

PPM to the clarified interpretation in the 1994 PPL therefore did not require notice-and-comment 

rulemaking. In Darrell Andrews Trucking, Inc. v. Federal Motor Carrier Safety Administration, 

296 F.3d 1120, 1126 (D.C. Cir. 2002), the D.C. Circuit held that prior regulatory guidance that 

 4

 The Commission notes that the Supreme Court has granted certiorari to decide the general 

validity of the Alaska Hunters doctrine. Mortgage Bankers Ass’n v. Harris, 720 F.3d 966 (D.C. Cir. 

2013), cert. granted sub nom. Perez v. Mortgage Bankers Ass’n, 82 U.S.L.W. 3533 (U.S. June 16, 2014) 

(No. 13-1041). However, we need not reach this issue because, as stated above, Alaska Hunters does not 

apply here. 

5

 To add to the ambiguity, although the 1988 PPM specifically stated that the “annual” test did 

not apply, it was silent as to whether testing nevertheless applied to trailing cables, power cables and 

cords under section 56.12028 when installed, modified or repaired. 

36 FMSHRC Page 1969
“offer[ed] some support for the positions of both” parties could therefore “only be described as—

at best—ambiguous.” A change to ambiguous guidance does not require notice-and-comment 

rulemaking because it “cannot be said to mark a definitive interpretation from which the 

agency’s current construction is a substantial departure.” Id. 

Furthermore, the operator cannot show substantial and justifiable reliance here because: 

(1) it does not allege any reliance on the prior interpretation, and any reliance it might allege 

would not be sufficiently substantial; (2) the operator’s alleged reliance on Hibbing Taconite

does not trigger the Alaska Hunters rule; and (3) even if the operator’s alleged reliance on 

Hibbing Taconite triggered Alaska Hunters, such reliance would not be justifiable in light of 

later events. 

In Alaska Hunters, the Court placed great emphasis on the fact that the Alaskan guide 

pilots substantially relied on the prior agency interpretation when they made capital expenditures 

and significantly altered business practices. 177 F.3d at 1035. Alaska Hunters does not apply 

here because the operator did not make any such investments or other significant business 

decisions in reliance on MSHA’s prior interpretation. Cf. Ass’n of Am. R.R. v. Dep’t of Transp., 

198 F.3d 944, 950 (D.C. Cir. 1999). Indeed, the operator does not assert that it made any 

business decisions in reliance on the interpretation prior to the interpretive change in 1994. 

Rather, the operator asserts only that it relied upon the Judge’s ruling in Hibbing Taconite from 

1999 onward to justify its non-compliance with MSHA’s interpretation of the standard. 

The operator’s reliance on the Judge’s decision in Hibbing Taconite does not trigger 

application of Alaska Hunters. It is clear that ALJ decisions have no precedential value. 

Commission Procedural Rule 69(d), 29 C.F.R. § 2700.69(d). Under the operator’s theory of 

reliance, however, MSHA would nonetheless be required to engage in notice-and-comment 

rulemaking any time it enforced a regulation in a manner contrary to a non-precedential decision 

by a Judge. This theory has no support in the reasoning of Alaska Hunters or its progeny, which 

deal only with reliance on a definitive prior agency interpretation. 

Even if, assuming arguendo, substantial reliance on a non-precedential adjudication could 

trigger Alaska Hunters’ notice-and-comment rulemaking requirement, such rulemaking would 

still not be necessary here because the operator’s reliance is unjustifiable in light of subsequent 

events. As the operator itself concedes, MSHA reiterated its 1994 interpretation of “grounding 

systems” when it published the revised PPM in 2003. PPM at 44-45 (2003). Thus, even if the 

operator had erroneously believed that MSHA had abandoned its 1994 interpretation when the 

Secretary decided not to appeal in the Hibbing Taconite decision, the 2003 PPM put the operator 

on notice that it had incorrectly perceived MSHA’s position. 

 

D. The operator had actual notice of MSHA’s position regarding its interpretation 

of “grounding systems.” 

 

As stated above, MSHA reiterated its 1994 interpretation of “grounding systems” when it 

published the revised PPM in 2003, five years before the Secretary undertook the current 

enforcement action. Therefore, the 2003 PPM provided actual notice to the operator of MSHA’s 

enforcement position. Due process is satisfied when an agency gives actual notice of its 

36 FMSHRC Page 1970
interpretation prior to enforcement. See, e.g., Consolidation Coal Co., 18 FMSHRC 1903, 1907 

(Nov. 1996) (holding that actual notice was provided by MSHA prior to issuance of citation); see 

also Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1329 (D.C. Cir. 1995) (reasoning that agency’s preenforcement warning to bring about compliance with its interpretation will provide adequate 

notice). 

III.

Conclusion

For the reasons stated above, we affirm the Judge’s denial of Tilden’s motion for 

summary decision and his granting of the Secretary’s cross-motion for summary decision.

 /s/ Mary Lu Jordan 

 Mary Lu Jordan, Chairman 

 /s/ Michael G. Young

 Michael G. Young, Commissioner 

 /s/ Robert F. Cohen

 Robert F. Cohen, Jr., Commissioner 

 /s/ Patrick K. Nakamura

 Patrick K. Nakamura, Commissioner 

 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 

36 FMSHRC Page 1971
1

 30 C.F.R. § 77.1710 provides in part that, “Each employee working in a surface coal

mine or in the surface work areas of an underground coal mine shall be required to wear

protective clothing and devices as indicated below.” Paragraph (g) provides:

Safety belts and lines where there is a danger of falling; a second

person shall tend the lifeline when bins, tanks, or other dangerous

areas are entered. 

30 C.F.R § 77.1710(g).

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

August 21, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 : Docket Nos. SE 2008-881

v. : SE 2008-268-R 

 :

JIM WALTER RESOURCES, INC. :

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

DECISION

BY: Jordan, Chairman; Nakamura and Althen, Commissioners

This consolidated contest and civil penalty proceeding arises under the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012). At issue is whether a

Commission Administrative Law Judge abused his discretion in reducing a civil penalty assessed

against Jim Walter Resources, Inc. (“JWR”) for a failure-to-wear-fall-protection violation of 30

C.F.R. § 77.1710(g).1 33 FMSHRC 362 (Feb. 2011) (ALJ). The citation was issued to JWR

following a fall by an employee of JWR’s contractor, O&O Services. The Judge assessed a

penalty of $500 rather than the proposed penalty of $45,000. Id. at 370-71. The Secretary of

Labor filed a petition for discretionary review, challenging the penalty reduction, the Judge’s

finding that JWR was not negligent, and the Judge’s related treatment of evidence regarding two

prior incidents involving violations of section 77.1710(g) by JWR. For the reasons that follow,

we affirm the Judge’s decision.

36 FMSHRC Page 1972
2

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

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

(continued...)

I.

Factual and Procedural Background

The clean coal load-out facility at JWR’s No. 4 Mine funnels clean coal into trucks and

rail cars. Clean coal is moved by conveyor belt to the top of the facility, where it is dumped into

a large, downward pointing metal cone-shaped loading bin. The cone surrounds an opening in

the floor of a platform, which is approximately 21 by 48 inches in size. The cone funnels and

loads the coal into trucks parked beneath the loading bin. Tr. 64, 117; JWR Exs. 6g-6i.

JWR contracted with O&O to provide the labor and supervision for a project to replace

the cone-shaped bin. 33 FMSHRC at 364. O&O was to remove the eight sections of the cone

and replace them with new sections. 

O&O’s work on the project began on December 2, 2007. Id. Loops, called “pad eyes”

were welded onto the existing bin and the new sections of the cone. Id. at 370; Gov’t Ex. 20F;

Tr. 334-35, 389. The loops could be used to lift the structure’s pieces or for miners to tie-off on

them. Tr. 389. Removal of the cone sections exposed the hole in the floor of the platform. 

During part of the project, the hole was covered with a metal plate that had metal fins, or

“gussets,” protruding from it. Tr. 64-65.

On December 4, two issues arose regarding the project. Tr. 319-21. First, there were

concerns that part of the structure had been unevenly cut, which could potentially result in gaps

between the new cone sections. Tr. 233-36, 263-64, 277, 310. Second, O&O experienced

difficulty in positioning some of the new sections of the cone into place because the metal fins

on the metal plate covering the hole in the platform were interfering with placement of the

pieces. Tr. 67-68, 312.

At some point during installation of the cone pieces, the metal plate was moved away

from covering the entire hole and a section of 2 x 12 wooden board was placed over the open

space, partially covering the hole. Tr. 78, 317, 393. Tony Pierce, an O&O employee, stood on

the board using a pry bar to move the fifth cone section into place. Tr. 67, 109-10, 117-18, 316-

17. The board was dislodged, and Mr. Pierce fell through the hole a distance of 25 feet and

landed on a concrete platform. Tr. 81, 139. Pierce was not wearing a safety belt or fall

protection. Tr. 113.

The Department of Labor’s Mine Safety and Health Administration (“MSHA”)

investigated the accident. As a result of the investigation, MSHA Inspector Stephen Womack

issued citations to O&O and JWR. The citation issued to O&O alleged a significant and

substantial (“S&S”) violation of section 77.1710(g) that had been caused by O&O’s

unwarrantable failure.2

 Gov’t Ex. 2. The Secretary proposed a penalty of $60,000 against O&O. 

36 FMSHRC Page 1973
2

(...continued)

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

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

establishes more severe sanctions for any violation that is caused by “an unwarrantable failure of

[an] operator to comply with . . . mandatory health or safety standards.” 30 U.S.C. § 814(d)(1). 

3

 In the Secretary’s determination of a proposed penalty amount, the Secretary may

propose a “regular assessment” under 30 C.F.R. § 100.3 or a “special assessment” under 30

C.F.R. § 100.5. 

O&O agreed to pay $5,000 in settlement of the citation, and the Judge approved the settlement. 

33 FMSHRC at 364 n.1; PDR at 3, 4.

The citation issued to JWR, Citation No. 7693051, alleged an S&S violation of section

77.1710(g) that had been caused by moderate negligence. Gov’t Ex. 3. The citation was

terminated on February 5, 2008, after “[JWR] management . . . submitted to MSHA a statement

indicating that a greater emphasis on the use of PPE [personal protective equipment] will be

related to contractors doing work on JWR No. 4 mine property, and during the process of hazard

training will review recent accidents of contractor employees.” Id. The Secretary proposed a

special assessment of $45,000 against JWR.3

JWR challenged the citation, and the parties conducted discovery and filed prehearing

pleadings. Prior to and during the hearing, the Judge granted in part a motion in limine filed by

the operator seeking to exclude evidence that had been the subject of previously issued

protective orders. PDR at 3 n.1; Tr. 7-10. The Judge excluded evidence regarding a 2001

incident, including proposed Gov’t Ex. 13A, which is a citation issued to JWR alleging a

violation of section 77.1710(g). Tr. 7-8, 10. The Judge admitted evidence regarding a 2007

incident, including a citation issued to JWR for a violation of section 77.1710(g) arising from a

fatal fall by JWR’s contractor (Gov’t Ex. 9) and a decision approving settlement regarding the

2007 incident (Gov’t Ex. 11). Tr. 134-35. The Judge excluded other evidence regarding the

2007 incident. Tr. 5, 7.

Following a hearing on the citation issued to JWR, the Judge affirmed the citation and

assessed a civil penalty of $500 against JWR rather than the proposed penalty of $45,000. 33

FMSHRC at 368, 370-71. He concluded that O&O violated the standard, and that the violation

was S&S. Id. at 368-69. The Judge reasoned that because the Secretary may cite JWR as an

owner-operator for its contractor’s violations, JWR was also liable for the violation. Id. at 368. 

Applying the factors set forth in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), in his

assessment of penalty, the Judge found that JWR is a large business, that there was no evidence

that the proposed penalty would affect its ability to remain in business, and that the violation was

abated promptly and in good faith. Id. at 369. The Judge further found that gravity was high,

and that JWR had a significant history of violations. Id. at 368-69.

36 FMSHRC Page 1974
4

 We reject the Secretary’s argument that the Commission must apply the standard of

care set forth in 30 C.F.R. § 100.3(d) in considering whether JWR was negligent. Section

100.3(d) defines negligence in part as “conduct, either by commission, or omission, which falls

below a standard of care established under the Mine Act to protect miners against the risks of

harm.” 30 C.F.R. § 100.3(d). The Secretary’s Part 100 regulations apply only to the Secretary’s.

penalty proposals, while the Commission exercises independent authority to assess penalties

pursuant to section 110(i) of the Mine Act. Deshetty, emp. by Island Creek Coal Co., 16

FMSHRC 1046, 1053 (May 1994); Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52

(7th Cir. 1984), aff’g Sellersburg Stone Co., 5 FMSHRC 287 (Mar. 1983) (“[N]either the ALJ

nor the Commission is bound by the Secretary’s proposed penalties . . . we find no basis upon

which to conclude that [MSHA’s Part 100 penalty regulations] also govern the Commission.”).

Regarding negligence, the Judge noted that Inspector Womack testified that JWR was

moderately negligent because it did not do “everything [it] could” to see that its contractor was

following federal regulations. Id. at 369-70. The Judge reasoned that the Secretary was in

essence suggesting that JWR must maintain direct and continuous supervision over its

contractor’s employees, but that such a requirement is not required by law. Id. at 370. He stated

that the closest the Secretary had come to providing notice as to the standard of care required of

JWR was the abatement required regarding the 2007 incident. Id. Those abatement actions

included additional training and requiring JWR to install an adequate anchorage system. Id. The

Judge found that, in this instance, JWR had provided an adequate anchorage system and that

O&O employees were provided adequate training prior to beginning work. Id. The Judge

concluded, accordingly, that JWR exercised the standard of care required by law and that the

Secretary failed to prove that JWR was negligent. Id.

The Secretary filed a petition for discretionary review challenging the Judge’s finding

that JWR was not negligent, the Judge’s treatment of evidence regarding the 2001 and 2007

incidents, and the Judge’s reduction of penalty. The Commission granted the Secretary’s

petition.

II.

Disposition

A. The Judge’s Finding that JWR was Not Negligent Is Supported by Substantial

Evidence.

The Commission has recognized that “[e]ach mandatory standard . . . carries with it an

accompanying duty of care to avoid violations of the standard, and an operator’s failure to meet

the appropriate duty can lead to a finding of negligence if a violation of the standard occurs.” 

A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator met

its duty of care, we consider what actions would have been taken under the same circumstances

by a reasonably prudent person familiar with the mining industry, the relevant facts, and the

 protective purpose of the regulation.4 See generally U.S. Steel Corp., 6 FMSHRC 1908, 1910

(Aug. 1984).

36 FMSHRC Page 1975
5

 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., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v.

NLRB, 305 U.S. 197, 229 (1938)).

Considering JWR’s conduct against this framework, we conclude that substantial

evidence supports the Judge’s determination that JWR was not negligent.5

 The record

demonstrates that JWR was not negligent in hiring O&O. O&O had no prior MSHA violations. 

Tr. 197, 333, 414. O&O had completed other projects for JWR safely, including three or four

that year, and was considered an “approved vendor” for JWR. Tr. 274, 292-93. JWR also

determined that O&O was appropriately aware of MSHA’s regulations. JWR ensured that O&O

had received required training before work on the project began. Tr. 299, 349-50. As part of

their hazard training, O&O’s employees watched an MSHA fall protection video. Tr. 387, 400-

02. O&O’s training program had been approved by MSHA. Tr. 185-86, 414. Robin O’Dell, an

employee of O&O who provided training, was an MSHA certified trainer. Tr. 387, 398-401. 

Furthermore, we disagree with the Secretary’s argument that JWR failed to adequately

monitor O&O’s compliance with safety standards once O&O began work. The project was

relatively brief in duration. O&O began the project during the night shift Sunday and had

removed the cone and was in the process of replacing the fifth of eight cone pieces at the time of

the accident on the following Tuesday morning. Tr. 67, 173, 232, 275. JWR Senior

Maintenance Engineer Jerry Pullen met with O&O on Tuesday, and JWR Project Supervisor

Randy Osborne and JWR Plant Manager Alan Smith met with O&O at the site on Monday and

Tuesday mornings. Tr. 231-32, 261-62, 276-77. Osborne and Smith testified that at the time

that they were on the site, they did not observe any miners who were in danger of falling who

were not wearing fall protection. Tr. 260-61, 266, 299. Smith testified that he had previously

seen O&O employees working at heights on previous projects, and that they had been wearing

and using fall protection. Tr. 295. Inspector Womack testified that he had been informed by

O&O Foreman Kris Gamble that Pierce had been wearing fall protection earlier in the day of the

accident when he was on a ladder. Tr. 108-09, 177.

There is likewise no evidence that there was an unusual condition that should have

alerted JWR to a hazardous condition. Fall protection equipment had been provided and was

located in the area of the accident, and pad eyes used for tying off had been installed on the cone

sections. 33 FMSHRC at 370; Gov’t Exs. 20F, 20H; Tr. 73, 334. There were no allegations that

use of the metal plate with gussets to cover the hole was negligent. 

In addition, JWR had not been informed that O&O was having difficulty installing the

cone sections because the gussets of the plate covering the hole interfered with placement of the

sections. Tr. 231-32, 263-64, 268-69, 320-21. Pullen’s and Osborne’s testimony that they had

not been informed of the problem with the plate was corroborated by O&O Foreman Gamble,

who testified that although he discussed with Pullen and Osborne the problem involving the cone

sections not matching up because one had not been cut level, he did not discuss the plate

36 FMSHRC Page 1976
6

 Our colleagues agree with us that the appropriate legal standard to determine

negligence in this matter is the reasonably prudent person standard. Slip op. at 12. They would

remand the case and instruct the Judge to apply this standard to the facts in the record.

This would be an unnecessary exercise, since the Judge articulated and applied a standard that 

was similar, and that took into account the reasonableness of the operator’s actions 33 FMSHRC 

at 369-70 (“Negligence has been defined as conduct involving an unreasonably great risk of 

causing damage or conduct that falls below the standard established by law for the protection of 

others against unreasonable risk of harm.”). Finally, even if the foregoing had not occurred, 

remand here is not necessary because the evidence in this case supports no other conclusion than 

that the Secretary failed to prove that JWR was negligent. See American Mine Svcs., Inc., 15 

FMSHRC 1830, 1833-34 (Sept. 1993) (holding that remand would serve no purpose because the 

evidence presented on the record supported no other conclusion than that the operator’s conduct 

was not unwarrantable).

problem. Tr. 320-21. On the morning of the accident, Pullen and Osborne were in the area of

the plate covering the platform but saw no hole in the platform because the hole was covered at

the time of their visit. Tr. 235, 243, 245, 264-65, 267.

Substantial evidence also supports the Judge’s finding that JWR was not aware that

Pierce was working over the open hole or that Pierce failed to wear fall protection. 33 FMSHRC

at 370. As discussed above, Pullen and Osborne testified that at the time they were at the site,

the hole in the platform was covered. Tr. 243, 245, 265, 267. Smith testified that he was not

aware that O&O had installed a plate over the hole or that it had been moved. Tr. 280-81.

The Secretary fails to describe any specific action that JWR did not take to meet its

standard of care. Rather, Inspector Womack explained that the citation had been issued to JWR

because MSHA believed there was negligence and JWR “did not do everything [it] could” to see

that the contractor was following regulations. Tr. 125. The inspector’s accident investigation

report does not specify any actions or failure to act by JWR that contributed to the violation. 

Rather, the report only states that “the contractor [O&O] failed to adequately control the work

site and workers actions.” Gov’t Ex. 6 at 2 (emphasis added); Tr. 126-27, 160-61, 211-12. We

conclude that substantial evidence supports the Judge’s determination that the Secretary did not

meet her burden of proving negligence on the part of JWR. 33 FMSHRC at 370.6

B. The Judge Did Not Err in his Treatment of the 2001 and 2007 Incidents.

The Secretary contends that the Judge failed to consider the 2001 and 2007 incidents,

which the Secretary argues should have put JWR on notice that it was not meeting its standard of

care. He does not dispute the Judge’s exclusion of evidence with respect to the 2007 incident

but, rather, argues that the Judge failed to adequately consider the 2007 violation in finding that

JWR was not negligent. Sec. Reply Br. at 1-2 n.1, 6. Regarding the 2001 incident, the Secretary

contends that the Judge erred in excluding proposed Gov’t Ex. 13A, the citation issued to JWR

arising from the 2001 incident. Sec. Reply Br. at 1-2 n.1. The Secretary explains that the Judge

36 FMSHRC Page 1977
excluded the citation because “he believed it was ‘too old to represent an expression of the

[Secretary’s] unreviewable prosecutorial discretion in late 2007.” Id. at 3. The Secretary

submits that his discretion to cite an owner for the violations of its independent contractor is

unreviewable and because the Judge had no authority to even consider the Secretary’s

prosecutorial discretion, he abused his discretion in excluding the citation. Id.

When reviewing a Judge’s evidentiary rulings, the Commission applies an abuse of

discretion standard. Gray v. North Fork Coal Corp, 35 FMSHRC 2349, 2356 (Aug. 2013). An

abuse of discretion may be found when “there is no evidence to support the decision or if the

decision is based on an improper understanding of the law.” Id. (quotations and emphasis

omitted). 

In his negligence analysis, the Judge noted that the 2007 citation involved “a prior

violation of the same standard by JWR about one month before the incident herein and involving

a fatal fall accident of an employee of a JWR contractor.” 33 FMSHRC at 370. He considered

the accident to determine the notice provided to JWR of the required standard of care. Id. The

Judge noted the actions required by the Secretary for JWR to abate the 2007 violation (providing

additional training and installing an adequate anchorage system to secure personnel from falling)

and that JWR had taken those actions before the time that the subject accident occurred. Id. As

noted above, the anchorage system available at the subject accident site and JWR’s actions in

ensuring that O&O had received adequate training are relevant to the consideration of

negligence. Accordingly, we conclude that the Judge adequately considered the 2007 violation

in his negligence analysis. 

We further conclude that the Judge did not abuse his discretion in excluding proposed

Gov’t Ex. 13A, the citation issued to JWR arising from the 2001 incident. After viewing in

context the Judge’s statement, it is clear that the Judge was not actually considering the

Secretary’s prosecutorial discretion. See, e.g., Tr. 25 (stating in part, “I am referring to notice. I

don’t have any problem with exercising discretion”). Rather, the Judge’s statements demonstrate

that he considered the standard of care required of an owner-operator in cases in which its

independent contractor has been cited to be vague, and that the 2001 citation did not provide

notice to JWR of what was expected of it at the time of the subject accident. Tr. 17-19, 25-27;

see also 33 FMSHRC at 370 & n.5. Thus, the Judge’s exclusion of the 2001 citation was not

based on an erroneous conclusion that he could consider the Secretary’s prosecutorial discretion

in citing JWR.

In any event, even if we were to conclude that the Judge erred in excluding Gov’t Ex.

13A, we would find such error to be harmless. For the reasons discussed above, we find

substantial evidence in the record supporting the Judge’s negligence holding, and consideration

of the 2001 citation would not alter our conclusion.

C. The Judge Did Not Err in Reducing the Penalty Amount.

The Secretary argues that the Judge abused his discretion in reducing the penalty

assessed against JWR from the proposed amount of $45,000 to $500. He asserts that the Judge

failed to explain the reduction adequately, even if the reduction were based on his no negligence

36 FMSHRC Page 1978
finding, because the Judge also found the violation history to be significant and gravity to be

high. The Secretary contends that a Judge may not give dispositive weight to any one penalty

factor. 

Commission Judges are accorded broad discretion in assessing civil penalties under the

Mine Act. See, e.g., Cantera Green, 22 FMSHRC 616, 620 (May 2000). Such discretion is not

unbounded, however, and must reflect proper consideration of the penalty criteria set forth in

section 110(i) and the deterrent purpose of the Act. Sellersburg Stone Co., 5 FMSHRC 287,

290-94 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). Although there is no presumption of

validity given to the Secretary’s proposed assessments, the Commission has recognized that

substantial deviations from the Secretary’s proposed assessments must be adequately explained

using the section 110(i) criteria. Cantera Green, 22 FMSHRC at 620-21. 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). 

We conclude that the Judge did not abuse his discretion in assessing the penalty. The

Judge addressed and made findings on all six section 110(i) factors in his assessment of penalty. 

33 FMSHRC at 369-70. 

The Commission has recognized that in assessing a civil penalty, there is no requirement

that equal weight must be assigned to each of the penalty assessment criteria. Rather, “Judges

have discretion to assign different weight to the various factors, according to the circumstances

of the case.” Lopke Quarries, Inc., 23 FMSHRC 705, 713 (July 2001), citing Thunder Basin

Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). Indeed, the Commission has held that Judges

have not abused their discretion by more heavily weighing gravity and negligence than the other

36 FMSHRC Page 1979
7

 We conclude that Fort Scott Fertilizer-Cullor, Inc., 19 FMSHRC 1511 (Sept. 1997),

the case cited by the Secretary to support his argument, is distinguishable. In that case, the

Commission vacated the penalty assessed by the Judge because the Judge only addressed and

made findings with respect to one of the six criteria. 19 FMSHRC at 1518. Here, as noted, the

Judge addressed and made findings on all six criteria.

8

 We note that if the penalty had been proposed as a regular assessment (rather than a

special assessment) with a finding of no negligence, the proposed penalty would have been

within the general range of the $500 penalty assessed by the Judge. Cf. Sedgman, 28 FMSHRC

322, 327 n.6 (June 2006) (noting that the Secretary proposed a penalty of $1,270 against JWR

for its violation of section 77.1710(g)).

penalty criteria.7

 Lopke, 23 FMSHRC at 713; Musser Engineering, Inc., 32 FMSHRC 1257,

1289 (Oct. 2010). 

The Judge did not err by weighing the negligence criterion more heavily than the other

section 110(i) factors in assessing the penalty against JWR. In proposing a penalty, the

Secretary weighs the gravity criterion more heavily than the negligence criterion. PDR at 7. 

However, the Judge was not required to weigh the criteria in assessing the penalty in the same

manner that the criteria are weighed in the proposal of a penalty. In determining the amount of a

penalty, neither the Judge nor the Commission is restricted by the penalty proposed by the

Secretary. Musser Engineering, 32 FMSHRC at 1288 (citations omitted). See also 29 C.F.R. §

2700.30(b) (“In determining the amount of a penalty, neither the Judge nor the Commission shall

be bound by a penalty proposed by the Secretary or by any offer of settlement made by a

party.”). 

Moreover, when cited for a contractor’s violation, an owner-operator is strictly liable for

the violation and its fault, or lack thereof, may be taken into account only in the consideration of

negligence during penalty assessment. Int’l Union, UMWA v. FMSHRC, 840 F.2d 77, 83-84

(D.C. Cir. 1988); Musser, 32 FMSHRC at 1272, citing Asarco, Inc., 8 FMSHRC 1632, 1634-36

(Nov. 1986), aff’d, 868 F.2d 1195 (10th Cir. 1989) (“the operator’s fault or lack thereof, rather

than being a determinant of liability, is a factor to be considered in assessing a civil penalty”). 

Here, the Judge appropriately considered JWR’s fault, or lack thereof, in his determination of

negligence and assessment of penalty. Accordingly, we affirm the Judge’s assessment of a

penalty of $500.8

36 FMSHRC Page 1980
III.

Conclusion

For the reasons discussed above, we affirm the Judge’s determination that JWR was not

negligent, his treatment of evidence regarding the 2001 and 2007 incidents, and his assessment

of penalty.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 1981
1

 We agree with the majority that if the Judge properly analyzes the negligence element

and explains a significant reduction in the penalty based on that element alone, as he did in this

case, he has not abused his discretion. 

2

 The majority misapprehends the significance of Section 100.3. See slip op. at 4, n.4. 

(continued...)

Commissioners Young and Cohen, dissenting: 

We cannot agree with the Judge’s analysis of JWR’s negligence in this case, which fails

to fully appreciate the context in which this violation occurred or to analyze the operator’s duty

in that context. While we do not believe the record requires reversal, we would remand the case

for re-evaluation of the negligence and, if necessary, reconsideration of the penalty.1

Accordingly, we dissent.

The near-fatal fall in this case was the third time in seven years that a contractor’s

employee had fallen at a JWR operation while working, unprotected, at height. The previous

two falls, in 2001 and 2007, had been fatal. The miner in this case fell 25 feet onto a concrete

pad, was seriously injured, and easily could have been killed. Tr. 139. 

The Judge seemed to lack sufficient grasp of the influence that the prior falls might

reasonably have exerted on JWR’s appreciation of the potential danger. It may well be that JWR

was justified in trusting O&O to safely oversee its own workers, using JWR’s remedial

abatement measures and fall protection which O&O should have known was required under the

circumstances. However, the owner-operator’s conduct here must also be properly evaluated in

light of the Act and the duties it imposes upon operators.

We thus agree with the Secretary that the Judge improperly imposed an additional burden

on the Secretary to provide notice to an owner-operator of the standard of care owed to

contractor employees. While the allocations of duty and responsibility may vary under different

circumstances, an operator of a mine does indeed owe a high duty of care to all miners working

in that mine, including contractor employees. 

This is organic to the structure and purpose of the Act. Section 2 of the Mine Act notes

the terrible toll exacted by unsafe and unhealthful conditions and practices in the nation’s mines

and provides that “the operators of such mines with the assistance of the miners have the primary

responsibility to prevent the existence of such conditions and practices in such mines.” 30 U.S.C.

§ 801(e).

Thus, while the Judge agreed with JWR that it had not been provided with notice of the

standard of care, 33 FMSHRC 362, 369-70 (Feb. 2011) (ALJ), the Act itself imposes a duty to

prevent unsafe conditions or practices. Furthermore, while 30 C.F.R. Part 100 is not binding on

the Commission,2

 it clearly provides notice to operators of the Secretary’s conception of the duty

36 FMSHRC Page 1982
2

(...continued)

To the extent the Judge held that the operator did not have notice of the duty it owes its miners,

he is refuted by a published regulation, and the well-understood operation of the broad definition

of “miner” under the Act. 

3

 Section 100.3(d) provides in part: 

Negligence is conduct, either by commission or omission, which

falls below a standard of care established under the Mine Act to

protect miners against the risks of harm. Under the Mine Act, an

operator is held to a high standard of care. A mine operator is

required to be on the alert for conditions and practices in the mine

that affect the safety or health of miners and to take steps

necessary to correct or prevent hazardous conditions or practices.

The failure to exercise a high standard of care constitutes

negligence.

30 C.F.R. § 100.3(d) (emphasis added).

owed to miners under the Act. Section 100.3(d) informs JWR and every other operator of the

Secretary’s expectation of the “high standard of care” owed to all miners in its mines, and of its

responsibility to “be on the alert” for unsafe practices or conditions and “take steps necessary to

correct or prevent them.” PDR at 8-9, citing 30 C.F.R. § 100.3(d).3

 The regulation goes on to

flatly state that the failure to do so constitutes negligence. Id. The operator should have at least

known the Secretary’s expectations, expressed in a published regulation. 

Thus, the question posed by this case is not whether JWR did “everything they [sic]

could,” 33 FMSHRC at 369, but whether the operator failed to apprehend the evident danger in

this case and to take such steps as a reasonable person, familiar with the mining industry and the

protective purposes of the Act, would take under the circumstances to prevent miners from being

exposed to a risk of injury or death. The majority acknowledges this as the correct standard. 

Slip op. at 4, citing U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984). However, the

majority then analyzes JWR’s duty in terms of substantial evidence, disregarding the Judge’s

legal error in miscasting the concept of negligence in this case. Slip op. at 5. 

In evaluating an operator’s duty, and its possible breach, context is crucial. Yet the

Judge utterly failed to consider two nearly identical, fatal injuries to contractor employees in

JWR’s recent history. One of the two falls happened a mere four months before the fall in this

case. G. Ex. 9; PDR at 13-14. Instead of considering the two prior falls by contract employees,

he misapplied the law and excluded evidence of the 2001 accident altogether, on grounds that it

was “too old” to provide notice to JWR of MSHA’s policy of prosecuting injuries to contract

36 FMSHRC Page 1983
4

 The fact that the Secretary did not articulate the law properly below does not excuse the

Judge’s legal error, which we review de novo. As the majority acknowledges, a decision based

on an improper understanding of the law is abuse of discretion per se. Slip op. at 7, citing Gray

v. North Fork Coal Corp., 35 FMSHRC 2349, 2356 (Aug. 2013). 

5

 The Judge also took testimony on the 2001 incident as a proffer to preserve the facts for

a possible appeal. Tr. 222-26. As noted above, failure to consider the 2001 incident was

erroneous.

employees. Tr. 10.4 The Secretary correctly questions how a fatal accident only seven years

earlier could have faded from memory. PDR at 13. Indeed, it is not unreasonable to expect it to

have become part of JWR’s consciousness on safety issues involving contractors. 

As the Secretary notes (PDR at 12; Sec. Reply Br. at 4-5), as demonstrated by Alabama

law, for example, a Judge should have considered both accidents as evidence of negligence, “so

long as the conditions of the prior incidents are substantially similar” – in this case, they are

nearly identical – “and are not too remote in time.” See e.g., Wyatt v. Otis Elevator Co., 921

F.2d 1224, 1227 (11th Cir. 1991). Here, the Judge did not do so, nor did he explain why a fatal

accident seven years earlier at one of the operator’s own work sites was too remote in time, a

fact we cannot accept as self-evident. 

If the 2001 fatality was at least arguably relevant to JWR’s negligence, the 2007 fatality

was doubly so. The Judge therefore was required to determine whether a reasonably prudent

person would have recognized the danger that event evinced, as well as the possibility that this

fall and the 2001 fatality may have represented a pattern of inadequate contractor attention to the

safety standards governing fall protection. Instead, the 2007 accident, which was the subject of

evidence presented to the Judge,5

 is not meaningfully considered in his negligence analysis. The

majority errs in miscasting the relevance of the very recent fatality in nearly identical

circumstances. The important question is not JWR’s notice of the standard of care. See slip op.

at 7; 33 FMSHRC at 369-70. It is whether and how JWR’s duty to protect the workers in its

mines, in light of an incident that a reasonable person would have to consider in determining

how to uphold that duty, was fulfilled. 

The Judge therefore erred in two significant regards. His understanding of JWR’s duty

did not conform to the expectations of the Mine Act and the regulations implementing it, and he

failed to consider incidents similar enough to be relevant to JWR’s knowledge and actions in the

context of this case. The result is an improperly constrained view of the operator’s actions here. 

The Judge faults the Secretary for “suggesting that JWR must maintain direct and continuous

supervision over its contractor’s employees” to ensure fall protection is employed when

required, 33 FMSHRC at 370. But his opinion is devoid of analysis of any lesser measures that

JWR might have undertaken in these circumstances, in light of a recent history of contractor

employees falling to their deaths. 

36 FMSHRC Page 1984
6

 Chris O’Dell of O&O testified that the contractor had a safety meeting each morning

on the job and that fall protection was specifically addressed. Tr. 332. There is no evidence of

any JWR representatives discussing fall protection with O&O employees at the daily meetings.

7

 As the operator says in its brief, witnesses for O&O noted that JWR routinely applied

pressure to contractors to abide by safety rules, especially those pertaining to fall protection.

JWR Br. at 7; Tr. 330-31. JWR also discussed fall protection with O&O each time the

contractor bid on a job, and JWR expressly told O&O that “[i]f we didn’t follow safety

procedures as in tying off . . . we would be escorted off the site.” JWR Br. at 7; Tr. 384. We

note that the Judge did not evaluate these actions either, and on remand would be required to do

so under the appropriate standard of care.

The Judge thus never considered whether, for example, JWR might have averted the

severe consequences in this case by taking a more safety-conscious approach, such as reminding

the contractor specifically, before commencing work each day,6 of the steps JWR had taken to

provide a safe work environment, and the need for the contractor to ensure its employees used

the fall protection JWR had made available. 

This is not a case where the operator “did nothing.”7 Nor is it a case where the operator

should be excused without reflection for “not doing everything it could.” It is instead a gardenvariety negligence case, in which the operator’s conduct must be properly evaluated against the

expectations imposed upon a reasonable operator in the same context. The Judge failed to

recognize this, and we therefore dissent and suggest that the case should be remanded for a

proper analysis of the operator’s conduct.

/s/Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

36 FMSHRC Page 1985
Distribution:

Guy Hensley, Esq.

Jim Walter Resources, Inc.

3000 Riverchase Galleria, Suite 1700

Hoover, AL 35244

David M. Smith, Esq.

John B. Holmes, Esq.

Maynard, Cooper & Gale, P.C.

1901 Sixth Ave. North, Suite 2400

Birmingham, AL 35203

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Department 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

Administrative Law Judge Gary Melick

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

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

Washington, D.C. 20004

36 FMSHRC Page 1986
1

 MSHA also charged two other foremen – James Slone and Michael Diamond – with

personal liability under section 110(c), but the Judge vacated the citations issued to Slone and

Diamond. 33 FMSHRC 2403, 2424-25 (Oct. 2011) (ALJ).

2

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

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

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

3

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

(continued...)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004

August 22, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 : Docket Nos. KENT 2008-260 

v. : KENT 2008-986

 : KENT 2009-1154

MCCOY ELKHORN COAL CORP. :

 :

and :

 :

JASON ROBINSON, employed by :

 MCCOY ELKHORN COAL CORP. :

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

DECISION

BY: Jordan, Chairman; Cohen and Nakamura, Commissioners 

These cases arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801

et seq. (2012). They involve two citations issued by the U.S. Department of Labor’s Mine

Safety and Health Administration (“MSHA”) to McCoy Elkhorn Coal Corporation for permitting

combustible material to accumulate in the active workings of its mine and for its failure to record

those accumulations in its preshift report. MSHA also sought to impose personal liability under

Mine Act section 110(c), 30 U.S.C. § 820(c), against McCoy Elkhorn foreman Jason Robinson

for the accumulations violation.1

 At issue is whether the Administrative Law Judge correctly

determined that: (1) the accumulations violation was significant and substantial (“S&S”);2 (2)

the violation was a result of unwarrantable failure;3

 (3) Robinson should be held personally

36 FMSHRC Page 1987
3

(...continued)

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

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

standards.”

4

 At the time of the citations, there were three shifts at the mine. Jason Robinson was the

section foreman for the first shift that worked from 6:00 a.m. to 2:00 p.m. James Slone was the

section foreman for the second shift that began at 2:00 p.m. and ended at 10:00 p.m. Michael

Diamond was the section foreman for the third shift that began at 10:00 p.m. and ended at 6:00

a.m. Tr. I 172; Gov’t Ex. 5, 10/17/07 notes at 7-8; 33 FMSHRC at 2407.

5

 The word “miners,” as used by Inspector Dotson in his testimony and notes, refers to

(continued...)

liable for the accumulations violation; and (4) the preshift violation was a result of high

negligence. 33 FMSHRC 2403 (Oct. 2011) (ALJ). For the reasons that follow, we affirm the

Judge in result.

I.

Factual and Procedural Background

On October 17, 2007, at approximately 8:00 a.m., MSHA Inspector Brian Dotson arrived

at McCoy Elkhorn’s No. 15 Mine for an inspection. Tr. I 182-83; 33 FMSHRC at 2408. Before

going underground, the inspector examined the preshift examination books at the mine office,

and noted that no conditions were listed on the preshift books for the 001/002 section, the section

at issue in this case. Tr. I 180; 33 FMSHRC at 2409. The 001/002 MMU section was known as

a “supersection,” in which two continuous miners cut simultaneously across nine entries. Id. at

2406. The left-side continuous miner mined entries one through four and the right-side

continuous miner mined entries five through nine. In the mine office, Inspector Dotson also

noticed that a computer screen which listed the belt lines and CO sensors depicted that the belts

were operational and running. Tr. I 179, 352-53; 33 FMSHRC at 2408.

Inspector Dotson proceeded underground and arrived at the 001/002 MMU section at

approximately 10:00 a.m. Id. at 2409. Foreman Jason Robinson was in charge of the first shift

of the day at that time. Tr. I 80; id. at 2408.4

 The inspector observed accumulations ranging from

8 to 24 inches in depth on the mine floor roadways, in four crosscuts and in all nine entries of the

001/002 section. Tr. I 171, 189; Gov’t Ex. 5, 10/17/07 notes at 6; 33 FMSHRC at 2409. The

accumulations consisted of float coal dust and loose coal that were dry and black in color and

had not been rockdusted. Tr. I 189-90, 223-29; 33 FMSHRC at 2409. 

The inspector’s notes, written at the time of the inspection, indicated that foreman

Robinson said that he knew the entire section “was dirty from the feeder to the face [and that the]

third shift was supposed to clean [the night before] but didn’t do [a] very good [job].” Tr. I 171;

Gov’t Ex. 5, 10/17/07 notes at 7. Dotson’s notes also stated that Robinson said “when he arrived

on the section this morning [Robinson] finished cutting . . . where the miners5

 were in [the] 3R

36 FMSHRC Page 1988
5

(...continued)

continuous mining machines rather than to human miners.

6

 Section 75.400 provides in pertinent part that “coal dust, including float coal dust

deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned

up and not be permitted to accumulate in active workings.”

7

 Section 75.360(b)(3) provides in pertinent part that “the person conducting the preshift

examination shall examine for hazardous conditions and violations of the mandatory health or

safety standards [pertaining to accumulations of combustible materials].” 

and 5 Heading.” Tr. I 171, 191; Gov’t Ex. 5, 10/17/07 notes at 7; 33 FMSHRC at 2410. When

the inspector arrived on the 001/002 section, no mining was ongoing, and Robinson’s crew was

cleaning up coal accumulations with shovels. Tr. I 259; 33 FMSHRC at 2409. 

Inspector Dotson issued Citation No. 7432120 under Mine Act section 104(d)(1), 30

U.S.C. § 814(d)(1), alleging a violation of 30 C.F.R. § 75.400,6

 for permitting combustible

materials to accumulate in active workings. Gov’t Ex. 7. The inspector designated the violation

as S&S and a result of the operator’s unwarrantable failure. Gov’t Ex. 7. Because the extensive

accumulations were not listed on the preshift book, the inspector also issued Citation No.

7420523 under Mine Act section 104(a), 30 U.S.C. § 814(a), alleging an S&S violation of 30

C.F.R. § 75.360(b)(3),7

 for failure to perform an adequate preshift examination of the 001/002

section. 33 FMSHRC at 2411; Gov’t Ex. 8.

It required four hours for the entire crew to clean the section, shoveling and using two

scoops as they became available. Tr. I 175, 267; Gov’t Ex. 5, 10/17/07 notes at 11-12, 23. The

inspector abated the accumulations violation at approximately 2:30 that afternoon. Tr. I 267,

303-04; Gov’t Ex. 5, 10/17/07 notes at 23; Gov’t Ex. 7. Dotson remained on the section until the

accumulations violation was abated. Tr. I 302. Upon returning to the surface, Dotson noted that

the preshift record for the shift had been changed. Sometime after the inspector went

underground, McCoy Elkhorn superintendent Gary Hensley had added the words “section needs

cleaned” to the preshift report that had been signed by the previous shift foreman at 5:50 a.m.

that morning. Tr. I 181-82; Gov’t Ex. 1; Gov’t Ex. 5, 10/17/07 notes at 24-25; 33 FMSHRC at

2411. 

After further investigation, MSHA issued individual citations under section 110(c)

against foremen Slone, Diamond and Robinson. 33 FMSHRC at 2405.

A hearing was held before an Administrative Law Judge, who determined that the

conditions on the 001/002 MMU section on the morning of October 17, 2007 constituted an

accumulations violation under section 75.400 that was S&S and a result of McCoy Elkhorn’s

unwarrantable failure. 33 FMSHRC at 2412-19. 

The Judge also concluded that, while Slone and Diamond did not have personal liability, 

foreman Robinson was liable under section 110(c) for knowingly permitting the combustible

materials to accumulate. Critical to the Judge’s findings was his credibility determination that

36 FMSHRC Page 1989
Robinson’s crew had made two mining cuts before initiating cleanup on the section. 33

FMSHRC at 2416-18, 2425. The Judge credited the inspector’s notes that were made at the time

of the inspection, as well as other evidence, over Robinson’s and two other miners’ testimony

that the two cuts were made later in the day after the section was cleaned. Id. 

As to Citation No. 7420523, the Judge found a S&S violation because of preshift

examiner Diamond’s failure to report the extensive accumulations that existed at the time of the

preshift. Id. at 2420-21. He raised the negligence from moderate to high because of the mine

superintendent’s addition of the notation that “section needs cleaned” to the preshift book many

hours after the preshift had been completed. Id. at 2421. Reasoning that such “conduct

undermines the fundamental role of the preshift examinations in promoting mine safety,” the

Judge raised the penalty from $3,689, which was proposed by the Secretary, to $6,500. Id. at

2422.

McCoy Elkhorn and Robinson filed appeals from the Judge’s decision to the

Commission. McCoy Elkhorn does not contest the fact of the violations, but disputes the

Judge’s findings of S&S and unwarrantable failure in Citation No. 7432120 (the accumulations

violation) and the Judge’s finding of high negligence in Citation No. 7420523 (the preshift

examination violation).

II.

Disposition

A. Whether the Accumulations Violation was S&S 

Under Commission case law, a violation is S&S if, based on the particular facts

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

result in an injury or illness of a reasonably serious nature. See Cement Div., Nat’l Gypsum Co.,

3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the

Commission set forth the following four-part test to evaluate whether a violation is properly

designated as S&S: 

In order to establish that a violation of a mandatory safety standard

is significant and substantial under National Gypsum, the Secretary

of Labor must prove: (1) the underlying violation of a mandatory

safety standard; (2) a discrete safety hazard — that is, a measure of

danger to safety — contributed to by the violation; (3) a reasonable

likelihood that the hazard contributed to will result in an injury;

and (4) a reasonable likelihood that the injury in question will be

of a reasonably serious nature. 

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir.

1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving

Mathies criteria). An evaluation of the reasonable likelihood of injury should be made assuming

36 FMSHRC Page 1990
8

 Commissioner Young notes that active abatement efforts may form part of the context

for analyzing the continuation of normal mining operations, and that accumulations which are

noted in examinations and promptly addressed may preclude a finding that the accumulations are

S&S. However, in this case even if active abatement was underway at the time of the inspection,

the operator fails to account for the fact that the accumulations presented a danger to miners for

at least parts of two previous shifts. The S&S analysis at that point would have found that the

discrete hazard contributed to by the violation – extensive, unreported accumulations of

dangerous, combustible material – was reasonably likely to cause injury during that period.

9

 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., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v.

NLRB, 305 U.S. 197, 229 (1938)).

continued normal mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985).

As an initial matter, McCoy Elkhorn asserts that the Judge erred in his S&S finding

because it was in the process of cleaning the accumulations when the inspector arrived. It

maintains that, assuming continued operations, those accumulations would have been removed

before mining resumed. 

We are not persuaded by McCoy Elkhorn’s argument. The Commission has long held

that an S&S determination must be made at the time the citation is issued “without any

assumptions as to abatement” and in the context of “continued normal mining operations.” U.S.

Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984) (emphasis added). Thus, in Gatliff Coal

Co., 14 FMSHRC 1982, 1986 (Dec. 1992), the Commission determined that the Judge

misapplied the Mathies test by inferring that the violative condition would cease. Further, the

“operative time frame for determining if a reasonable likelihood of injury exists includes both

the time that a violative condition existed prior to the citation and the time that it would have

existed if normal mining operations had continued.” Rushton Mining Co., 11 FMSHRC 1432,

1435 (Aug. 1989). Clearly, mining had occurred during times when the accumulations existed. 

Moreover, we decline to assume that the operator would have completely abated the

accumulations violation in the absence of the citation. Accordingly, we find no merit to the

operator’s abatement argument.8

 

We now examine each step of the Mathies test to determine whether the Judge correctly

analyzed each element based on the record.9 

The first Mathies element is satisfied by the Judge’s determination of a violation, a

finding which has not been appealed. 33 FMSHRC at 2413. 

With respect to the second Mathies element, the Judge determined that the accumulations

violation presented the hazard of combustion and propagation of a fire or explosion. Id. at 2414. 

Substantial evidence in the record supports this determination. The cited accumulations were

36 FMSHRC Page 1991
extensive, spanning all nine entries, and it took the entire first shift crew four hours to clean them.

 Tr. I 189, 302-04; Gov’t Ex. 6; 33 FMSHRC at 2415. The accumulations consisted of highlycombustible float coal dust and loose coal. Tr. I 189-90, 238, 249. 

The mine liberates large quantities of methane and is subject to 15-day methane spot

inspections under Mine Act section 103(i), 30 U.S.C. § 813(i). Tr. I 156, 247-49. As the Judge

held, “in the event of a methane ignition, the cited accumulations could be put in suspension,

increasing the hazard associated with a fire or explosion.” 33 FMSHRC at 2415. The inspector

testified that methane increases the potential danger of explosion or fire and that methane at the

explosive level had been detected at the mine. Tr. I 155-57. Additionally, potential ignition

sources were present on the supersection in the form of the cutter heads on the continuous miners 

Tr. I 247; 33 FMSHRC at 2415. See also Tr. I 235-36; Gov’t Exs. 6 & 7 (continuous miner

electric cables passed through the accumulations). This hazardous situation lasted for the two

shifts preceding Dotson’s inspection. 33 FMSHRC at 2412; Tr. I 144, 251, Tr. II 600; Gov’t Ex.

5, 10/17/07 notes at 8-9. 

Given these conditions, the inspector testified that “if there was a face ignition with the

amount of excessive accumulations of float coal dust . . . it would propagate and spread across the

whole section.” Tr. I 248-49. Accordingly, we conclude that the Judge’s statement is an accurate

description of the relevant hazard contributed to by the accumulations violation in this case, and

that it is supported by substantial evidence. 

In addressing the third Mathies element, the Commission has held that, in cases involving

violations which may contribute to the hazard of methane explosions or ignitions, the likelihood

of an injury resulting from the hazard depends on whether a “confluence of factors” exists that

could trigger an explosion or ignition. Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988). Some

of the factors to be considered include the presence of methane, possible ignition sources, and the

types of equipment operating in the area. Id.; Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan.

1997). 

 The Judge found that there was a reasonable likelihood that the combustion hazard caused

by the violation would result in serious injury. 33 FMSHRC at 2414-15. Substantial evidence in

the record supports his determination. Inspector Dotson testified that, due to the extensive nature

of the accumulations and the mine’s excessive methane liberation, an ignition would be

reasonably likely to result in fatal injuries that would affect all 14 people on the section. 

Tr. I 246-49. As noted above, cutter heads from the continuous miners served as potential

ignition sources. Accordingly, we affirm the Judge’s determination that there was a confluence

of factors present that would make a fire or ignition reasonably likely. 33 FMSHRC at 2414-15. 

See Amax Coal Co., 19 FMSHRC 846, 849 (May 1997) (holding that an ignition source and large

amounts of coal and coal dust that could propagate a fire or fuel an explosion satisfies the third

element of Mathies).

As to the fourth Mathies element, the Judge determined that any injury resulting from the

hazard contributed to by the violation would be serious. 33 FMSHRC at 2414. He relied on

Inspector Dotson’s testimony that an ignition was reasonably likely to result in fatal injuries to the

miners on the section. Tr. I 246-49. As the Seventh Circuit explained in Buck Creek, 52 F.3d at

36 FMSHRC Page 1992
135-36, in affirming a Judge’s S&S determination, nothing more was necessary to support an

inspector’s “common sense conclusion that a fire burning in an underground coal mine would

present a serious risk of smoke and gas inhalation.” See also Black Diamond Coal Mining Co., 7

FMSHRC 1117, 1120 (Aug. 1985) (recognizing that “ignitions and explosions are major causes

of death and injury to miners”). 

On this record, substantial evidence supports the Judge’s determination that the

accumulations violation contributed to a discrete safety hazard which would be reasonably likely

to result in an injury of a reasonably serious nature, as required by our S&S analysis. Thus, we

affirm the Judge’s finding that the accumulations violation was properly designated S&S. 

B. Whether the Accumulations Violation Resulted from an Unwarrantable

Failure

Unwarrantable failure is aggravated conduct constituting more than ordinary negligence. 

Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). 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, 52 F.3d at 136 (approving Commission’s

unwarrantable failure test). 

Whether the conduct is “aggravated” in the context of unwarrantable failure is determined

by looking at all the facts and circumstances of each case, including (1) the extent of the violative

condition, (2) the length of time that it has existed, (3) whether the violation posed a high risk of

danger, (4) whether the violation was obvious, (5) the operator’s knowledge of the existence of

the violation, (6) the operator’s efforts in abating the violative condition, and (7) whether the

operator has been placed on notice that greater efforts are necessary for compliance. See

Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 31 FMSHRC 1346,

1350-57 (Dec. 2009); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on

other grounds, 195 F.3d 42 (D.C. Cir. 1999). These factors need to be viewed in the context of

the factual circumstances of the particular case. Consolidation Coal Co., 23 FMSHRC 588, 593

(June 2001). All of the relevant facts and circumstances of each case must be examined to

determine if an operator’s conduct is aggravated or whether mitigating circumstances exist. Id.

1. Extensiveness and Obviousness

Regarding the extensiveness and obviousness of the violation, the evidence demonstrated

that the accumulations were extensive in nature in that it took the entire first shift four hours to

clean up the condition. 33 FMSHRC at 2418; Tr. I 175, 267, 304. The accumulations consisted

of combustible coal and float coal dust spillage and accumulations from mining cuts and in the

roadways that were in all nine entries from the feeder to the face. 33 FMSHRC at 2409, 2412; 

Tr. I 171, 189; see Gov’t Ex. 6 (Inspector’s diagram showing extensive accumulations on 001/002

section). The inspector measured the accumulations as ranging from 8 to 24 inches in depth, and

observed that they were dry and black in color. Tr. I 171, 189, 223, 229, 238-40; 33 FMSHRC at

2418. The inspector’s notes contain Robinson’s admission that the section was “dirty from feeder

to face,” and that “third shift was supposed to clean last night . . . but didn’t do very good.” Tr. I

36 FMSHRC Page 1993
171; Gov’t Ex. 5, 10/17/07 notes at 7. One miner testified that the coal spillages were more

extensive than normal. Tr. II 559. McCoy Elkhorn’s production report from the shift preceding

the citation also indicates that the section was not adequately cleaned. It reads that the crew

“cleaned what we could.” Gov’t Ex. 2. Robinson’s decision to have the entire crew of 14

persons engage in cleanup prior to the inspector’s arrival also is indicative of the extensiveness

and obvious nature of the accumulations. 

Although McCoy Elkhorn disputes the obvious and extensive nature of the accumulations,

substantial evidence in the record supports the Judge’s determination that the accumulations were

both extensive and obvious. For example, the Judge recognized that, as McCoy Elkhorn

contended, some of the accumulations cited by Dotson were material that had sloughed from the

ribs and had been sufficiently rock dusted to render them inert. 33 FMSHRC at 2412. However,

the Judge credited Dotson’s testimony that “while some accumulations were the result of nonviolative sloughage, what he cited were accumulations from continuous miner cuts and roadway

spillage in nine entries from the face to the feeder. (Tr. II 373).” Id.

2. Danger

With respect to the level of danger, we conclude that the violation posed a significant

degree of danger. The accumulations created a hazard, which was reasonably likely to lead to, or

propagate, a mine fire or explosion. Slip op., supra at 7; 33 FMSHRC at 2415.

3. Notice

As the Judge noted, McCoy Elkhorn had been issued 17 citations for accumulations

violations under 30 C.F.R. § 75.400 at the No. 15 Mine in the two year period prior to October

2007. 33 FMSHRC at 2419; Gov’t Ex. 10. Two of these citations had been issued in the week

before Inspector Dotson’s October 17, 2007 inspection, on October 11 and October 15. Tr. I 158-

68; Gov’t Ex. 4, 10/11/07 notes at 4; Gov’t Ex. 5, 10/15/07 notes at 5; 33 FMSHRC at 2419. 

Dotson testified that on October 11, during a closeout conference with Superintendent Gary

Hensley after his inspection, Dotson specifically addressed the excessive accumulations

violations at the mine. Tr. I 160-61. The inspector’s notes of October 11 state: “I explain[ed] to

Mr. Hensley that he is on notice that he has been issued an excessive amount of 75.400 citations

in the past 4 months and better efforts are required to remedy this condition.” Gov’t Ex. 4,

10/11/07 notes at 17. McCoy Elkhorn’s assertion that its prior citations do not provide notice

overlooks the inspector’s actual notice given a week earlier that greater compliance efforts were

needed with respect to combustible accumulations. See Tr. I 219; Gov’t Ex. 5, 10/17/07 notes at

10 (Inspector noted that this is the third citation for accumulation of combustible material issued

on this section in the past two weeks). Thus, substantial evidence in the record supports the

conclusion that McCoy Elkhorn was on notice that it had an ongoing accumulations problem at

the mine requiring greater compliance with section 75.400.

4. Duration

The record demonstrates that the majority of the accumulations resulted from mining cuts

that were made on the second shift on October 16 from 2 p.m. to 10 p.m. Tr. I 251; Gov’t Ex. 2

36 FMSHRC Page 1994
(McCoy Elkhorn’s production report shows that 14 1⁄2 cuts were made on second shift on October

16). Four of the cuts were unbolted and could not be cleaned up until the roof bolter went in on

the third (maintenance) shift. Tr. II 600. The maintenance shift could not clean the

accumulations satisfactorily, as recorded on the production report as follows: “cleaned what we

could, had 2 scoops down.” Gov’t Ex. 2. The record demonstrates that the accumulations

persisted at least for some of the second shift on October 16, through the third shift covering the

night of October 16-17, and then into the first shift the morning of October 17, as shown by

Robinson’s admission that the section was dirty when he arrived on the section. Gov’t Ex. 5,

10/17/07 notes at 7. Accordingly, we affirm that the accumulations existed for a sufficient

duration to support a finding of unwarrantable failure. See Buck Creek, 52 F.3d at 136 (holding

that accumulations that were present for more than one shift, after a pre-shift examination had

been performed, were properly designated as unwarrantable). 

5. Abatement Efforts

As the Judge found, McCoy Elkhorn was experiencing non-functioning scoop problems,

which impeded efforts to clean up the accumulations. 33 FMSHRC at 2408-09, 2412-13, 2418. 

Without adequate and working scoops, the mine was unable to clean the coal accumulations

caused by mining. Tr. I 125-26 (after cutting coal and roof-bolting, the scoop is supposed to come

in and clean all loose coal). Second shift foreman Slone testified that on his October 16 shift he

had two continuous miners operating but one of the three scoops was down with a part ordered and

the other two scoops had dead batteries. Tr. I 117, 139-40. Given the time necessary to charge a

scoop battery, Slone effectively had one working scoop for the two continuous miners. Tr. I 142-

43. The inspector noted that, according to day shift foreman Ronnie Loyne, the section had four

scoops and that “two stay broke down all the time.” Tr. I 171-72; Gov’t Ex. 5, 10/17/07 notes at 8. 

Slone conceded that there was a scoop “issue” at the mine, which “was part of the foul up.” Tr. I

117. Day shift mine foreman Loyne said that they “had a problem with scoops broken down ever

since he came to the mine two months ago.” Tr. I 173; Gov’t Ex. 5, 10/17/07 notes at 9. Jason

Robinson reported to the inspector that he had two dead scoops and two broken down when he

arrived on October 17. Tr. I 174; Gov’t Ex. 5, 10/17/07 notes at 10. Third shift Foreman Diamond

testified that “I quarrel with them a lot about their scoops.” Tr. II 636-37; see also Gov’t Ex. 2

(Diamond’s production report noted that it had two scoops down). 

The Judge determined that McCoy Elkhorn’s persistent problem maintaining functioning

scoops was an aggravating factor, rather than a mitigating factor as the operator contended. 33

FMSHRC at 2413, 2418. This is a proper finding. The operator is responsible for keeping its

equipment in working condition. If its equipment needs repair or replacement, and the result is

combustible accumulations or other conditions endangering the safety of miners, this certainly

does not constitute a mitigating circumstance for purposes of an unwarrantable failure

determination. The evidence demonstrates that McCoy Elkhorn did not maintain its scoops on this

section in proper working condition.

6. Possible Mitigation

We are not persuaded by McCoy Elkhorn’s argument that the unwarrantable failure finding

should be mitigated because it was in the process of cleaning the section when the inspector

36 FMSHRC Page 1995
10 We note that the Judge’s unwarrantable failure finding also relied on his determination

that foreman Robinson had taken mining cuts before ensuring cleanup of the accumulations. 33

FMSHRC at 2415-18. Irrespective of whether Robinson initiated mining before cleanup, a

question on which Commissioners disagree, we unanimously conclude that the record supports

an unwarrantable failure determination against McCoy Elkhorn.

arrived. McC. Br. at 12-13. McCoy Elkhorn continued mining with inadequate scoops, despite

prior warnings that greater compliance efforts were required, with the result that extensive,

combustible accumulations persisted for at least two shifts. See Consolidation Coal Co., 22

FMSHRC 328, 332-33 (Mar. 2000) (finding unwarrantable failure when operator had made some

efforts to rectify the condition, but failed to expeditiously remedy the condition after receiving an

inspector’s admonition of the need for greater compliance).

In summary, we affirm as supported by substantial evidence the Judge’s determination that

McCoy Elkhorn’s violation of section 75.400 was a result of its unwarrantable failure.10 

C. Section 110(c) Liability of Foreman Robinson

Section 110(c) of the Mine Act provides in part:

Whenever a corporate operator violates a mandatory health or safety

standard . . . , any . . . agent of such corporation who knowingly

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

to . . . penalties. 

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

agent knew or had reason to know of a violative condition. Kenny Richardson, 3 FMSHRC 8, 16

(Jan. 1981), aff’d on other grounds, 689 F.2d 632 (6th Cir. 1982). The Secretary need prove only

that an individual knowingly acted, not that the individual knowingly violated the law. Warren

Steen Const. Inc., 14 FMSHRC 1125, 1131 (July 1992). An individual acts knowingly where he is

“in a position to protect employee safety and health [and] fails to act on the basis of information

that gives him knowledge or reason to know of the existence of a violative condition.” LaFarge

Constr. Materials, 20 FMSHRC 1140, 1148 (Oct. 1998); Kenny Richardson, 3 FMSHRC at 16.

The Judge found that Robinson, who was aware of the extensive accumulations, directed

his crew to make two mining cuts before initiating cleanup of the accumulations. 33 FMSHRC at

2416-18, 2425. On this basis, the Judge determined that Robinson deliberately failed to act to

protect the miners on his crew by removing the combustible accumulations and was therefore

liable under section 110(c). Id. Similarly, the inspector explained the section 110(c) allegation

against Robinson: “Once he decided to go ahead and produce coal while those accumulations of

combustible material were in the area, he knowingly and willfully violated the law at that time.” 

Tr. II 359. See Prabhu Deshetty, 16 FMSHRC 1046, 1050 (May 1994) (foreman subject to section

110(c) liability for failure to address known accumulations). 

36 FMSHRC Page 1996
11 Dotson found that the 3-R had been only partially bolted, observing that the last row of

bolts was six to nine feet from the face. This was contrary to the approved roof control plan that

required a minimum distance of four feet from the face. Gov’t Ex. 9.

12 We note that neither of McCoy Elkhorn’s briefs addresses or explains when the cut

actually occurred with respect to the 3-R bolting citation that was issued at 11:10 a.m. on

October 17, 2007. Gov’t Ex. 9. We also note that neither foreman from the two preceding shifts

listed the roof bolting hazard in their preshift reports, which also supports the view that the 3-R

cut was not made until Robinson’s shift. Gov’t Ex. 1. See also Tr. II 610 (Foreman Diamond’s

testimony that roof hazards must be listed on preshift reports).

On appeal, the central issue with respect to Robinson’s section 110(c) liability is whether 

substantial evidence supports the Judge’s determination that Robinson ordered the mining cuts at

the 3-right crosscut (3-R) and the 5 Heading (5-H) before starting cleanup of the accumulations. 

McCoy Elkhorn and Robinson dispute the Judge’s finding, based on the inspector’s testimony and

notes, that Robinson took two cuts before starting cleanup. Instead, Robinson testified that the two

cuts in question were taken at 2:00 p.m. and 2:20 p.m, at the end of his shift. Tr. II 671. 

Turning to the 3-R cut, we conclude that substantial evidence in the record supports the

Judge’s conclusion that Robinson’s crew cut the 3-R on October 17 before Inspector Dotson

arrived. The cuts for the two shifts leading up to Robinson’s shift were listed in McCoy Elkhorn’s

production reports. Gov’t Ex. 2. On the October 16 second shift, foreman Slone’s crew made 14

1⁄2 cuts but 3-R was not listed as one of them. On the following maintenance shift, foreman

Diamond noted that his crew had “finished cutting 6L,” but that was the only cut listed. Gov’t Ex.

2; see also Tr. I 69, 71-72. Thus, the evidence indicates that the 3-R was not cut prior to

Robinson’s shift. While Dotson was on the section, he observed that the 3-R had been cut and

improperly bolted. Tr. III at 438-39.11 The inspector issued a citation for the inadequate bolting of

the 3-R at 11:10 a.m. Tr. III at 438, 440; Gov’t Ex. 9. The fact that 3-R had not been cut on

previous shifts but was cut when Inspector Dotson observed it at 11:10 a.m. strongly supports the

conclusion that it had been cut by Robinson’s crew on the morning of October 17, before Dotson

arrived.12

Inspector Dotson testified that when he discussed this with Robinson, Robinson said that

he had been aware of the condition for about four hours. Tr. III 439; see also Gov’t Ex. 5,

10/17/07 notes at 17. The inspector testified that this led him to believe that Robinson’s crew had

cut and bolted the 3-R that morning. Tr. III 438-40. As the Judge found, foreman Diamond’s

testimony was corroborating. 33 FMSHRC at 2416. Diamond testified that he had bolted all the

cuts that had been made before Robinson’s shift had begun. Tr. I 72-73, Tr. II 601. Accordingly,

the Judge credited Inspector Dotson’s testimony that the 3-R was cut on Robinson’s shift prior to

Dotson’s arrival, and not later in the day as testified by Robinson. 33 FMSHRC at 2416. 

Additionally, the inspector testified that he remained on the section until the citation was

abated at 2:30 p.m., which is after Robinson testified that he made the cuts. Tr. I 267, 302; Gov’t

Ex. 7. The inspector further testified that he was not aware of any cuts made while he was on the

section. Tr. I 302-03. This testimony undermines Robinson’s claim that the two cuts were made

36 FMSHRC Page 1997
13 McCoy Elkhorn argues that the 3-R could not possibly have been cleaned with the

scoops not fully charged. However, foreman Slone testified that cleaning was possible when a

scoop just had “a little charge.” Tr. I 142.

14 According to Dotson’s sketch of the section, when he arrived, the face of the 5 Heading

was flush with the inby ribs of the left and right crosscuts entering the 5 Heading. Gov’t Ex. 6. 

One of these was the 6-L crosscut which Diamond’s crew had completed on the previous shift.

Tr. I 68-69. The substantial evidence rule requires that the Commission consider whatever in the

record fairly detracts from the weight of the evidence supporting the judge’s determination. 

Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting Universal Camera Corp. v.

NLRB, 340 U.S. 474, 488 (1951)).

at approximately 2:00 and 2:20 p.m. Presumably, if cuts were made at those times, Dotson would

have been aware of them.

We also find that the contemporaneous inspector’s notes support the Judge’s section 110(c)

finding. Those notes state that Robinson told him that “when [Robinson] arrived on the section

this morning he finished cutting . . . where the miners were in 3R and 5 heading.” Tr. I 171; Gov’t

Ex. 5, 10/17/07 notes at 7. The Judge credited the contemporaneous notes of the inspector that

cuts in the 3-R and 5-H were taken before the cleanup over the testimony of Robinson and the

McCoy Elkhorn miners that the cuts were taken at approximately 2:00 and 2:20 p.m. 33 FMSHRC

at 2416-18; Tr. III 476-78. In addition, as the Judge found, the inspector was unequivocal that it

was not possible that he misunderstood Robinson as to when he cut the coal. Tr. III 450-51; 33

FMSHRC at 2417 & n.6. 

As we have long held, a Judge’s credibility determinations are entitled to great weight and

may not be overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept.

1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). Credibility determinations

reside in the province of the administrative law judge’s discretion and are subject to review only

for abuse of discretion. Dynamic Energy, Inc., 32 FMSHRC 1168, 1174 (Sept. 2010). We find

that the record contains support for the Judge’s credibility determinations.

Robinson argues that no coal was cut in the morning because the mine diagram drawn by

the inspector, Gov’t Ex. 6, indicates that the 3-R was clean, and, if there had been recent cuts,

some coal should have been shown. McC. Br. at 9. It is true that the 3-R is marked as clean on

Gov’t Ex. 6. Nonetheless, according to Robinson, some cleaning of the section took place before

inspector Dotson arrived in the morning, Tr. I 90, and 3-R may have been cleaned at that time.13

Although some of the operator’s arguments with respect to a cut at the 5-H could be

viewed as fairly detracting from the Judge’s finding,14 our review of the record demonstrates that

substantial evidence supports the conclusion that Robinson cut the 3-R before the inspector

arrived. Accordingly, on balance we conclude that substantial evidence, including the Judge’s

credibility determinations, support the finding that Robinson’s crew cut coal before it initiated

cleanup of the extensive accumulations.

36 FMSHRC Page 1998
Our dissenting colleagues allege that we fail “to account for direct testimony and evidence

which detracts from the Judge’s conclusion,” and that the Judge “failed to consider the evidence as

a whole,” particularly the direct testimony by Robinson, right-side continuous miner operator

William Lowe and left-side shuttle car operator Ricky Varney that no mining occurred on the

morning of October 17. Slip op. at 17. These allegations are incorrect. The Judge specifically

considered the testimony of Robinson, Lowe and Varney. With regard to Lowe, the Judge noted

that “Lowe, the continuous miner operator responsible for cutting the five heading . . . conceded he

could not recall if, or when, he cut the five heading on that day. (Tr. II 507-10).” 33 FMSHRC at

2418. With regard to Varney, the Judge concluded that Varney’s testimony “is entitled to little

weight when considered in the context of Dotson’s conflicting contemporaneous notes.” Id. It is

the Judge’s responsibility to resolve conflicts in the evidence, and the Judge did so here.

Additionally, our colleagues, taking us to task for relying on “minor circumstantial

evidence,” characterize the 3-R cut as “small (perhaps 10 foot).” Slip op. at 18. However,

Robinson testified that of the 40 feet he advanced on the October 17 shift, 25 or 30 feet – a not

insubstantial distance – was in the 3 right while the 10 foot cut was in the 5 heading. Tr. III 478-

79. Overall, he loaded 70 shuttle cars. Id. It is true that in affirming the Judge’s decision on

Robinson’s liability, we are relying to a large extent on circumstantial evidence in the form of

information obtained from McCoy Elkhorn production reports, together with the fact of the roof

bolting citation issued at 11:10 a.m. on October 17. However, the Commission has long

recognized that “the substantial evidence standard may be met by reasonable inferences drawn

from indirect evidence.” Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984). Thus,

similar to our conclusion herein, the Commission held in Windsor Coal Co., 21 FMSHRC 997,

1001-02 (Sept. 1999) that for purposes of unwarrantable failure, the duration of a violation may be

proven by an operator’s preshift and onshift reports. 

Finally, our colleagues argue that even if Robinson directed mining on the morning of

October 17, he then stopped the mining and had the whole crew shovel the accumulations. This,

according to the dissent, “undermines [our] conclusion that [Robinson] knowingly acted in failing

to protect miners.” Slip op. at 21. However, the fact that Robinson had his crew shoveling the

coal accumulations at the time Dotson arrived on the section does not exonerate him from

previously mining coal in the presence of those accumulations. See Warren Steen Construction,

Inc., 14 FMSHRC 1125, 1131 (July 1992) (section 110(c) violation occurred when supervisor

authorized miners to perform actions violative of statute).

Ultimately, this is a case where, on this issue, any set of facts from the record is susceptible

to rebuttal by another set of facts from the record. It is the Judge’s duty to weigh the competing

facts and resolve the conflicts. Here, the Judge decided to believe Dotson and not Robinson, Lowe

and Varney. The Commission’s task is to determine whether the Judge’s decision is supported by

substantial evidence. Although it would be possible to reach a different result, we conclude that

substantial evidence in the record supports the Judge’s determination that Robinson was personally

liable under section 110(c) for his failure to clean up the extensive and combustible accumulations

before cutting coal.

36 FMSHRC Page 1999
15 The Commission reviews a Judge’s negligence finding, which is a component of a

penalty assessment, to determine whether it is supported by substantial evidence and consistent

with the statutory penalty criteria set forth in section 110(i) of the Mine Act, 30 U.S.C. § 820(i). 

Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986). 

D. Finding of High Negligence Regarding the Preshift Violation

The Judge determined that McCoy Elkhorn’s initial failure to note that the section needed

cleaning on the preshift report was an S&S violation of section 75.360(b)(3). 33 FMSHRC at

2421. Section 75.360(b)(3) requires that, before a shift begins, a preshift examiner must conduct

an examination for hazardous conditions at the mine such as accumulations of combustible

materials. Enlow Fork Mining, 19 FMSHRC at 14-15 (holding that preshift examiner must record

accumulations of combustible materials as hazardous conditions.) The preshift examination

requirement “is of fundamental importance in assuring a safe working environment underground.” 

Buck Creek Coal Co., 17 FMSHRC 8, 15 (Jan. 1995).

Although McCoy Elkhorn has not appealed the preshift violation or its S&S nature, it takes

issue with the Judge’s raising of the negligence level from moderate, as originally found by the

Secretary, to high.15 The Judge raised the level because Hensley added the words that the “section

needs cleaned” to the preshift report some time after the preshift examination had already been

completed. Gov’t Ex. 1, at 4 (Preshift Report); 33 FMSHRC at 2421-22. We agree with the Judge

that the degree of negligence is high for the preshift violation; however, we do not endorse his

reasoning. Accordingly, we affirm the Judge in result. 

Substantial evidence on the record supports a determination of high negligence for the

failure to report the extensive accumulations in the preshift book. The inspector testified that the

negligence should have been marked as high because he believed that the accumulations had been

there since the second shift on October 16 and were not noted by either the second or third shift

foremen for the oncoming shifts. Tr. I 298-99; see also Gov’t Ex. 5, 10/17/07 notes at 14 (“Mike

Diamond did not list any hazards on his preshift on 10/17/07 for the day shift on 001/002 section. 

A 104(d) citation was issued for 75.400 across the section. Mr. Diamond should have known of

condition – it has existed for at least 6 hours since preshift . . . [and] 14 men on dayshift crew were

exposed to the condition.”) At the hearing, Diamond conceded that he should “have tried to do

more on the report.” Tr. II 626.

We have already concluded that, at the time of the inspection, extensive and obvious

accumulations of combustible coal and float coal dust were present in all nine entries on the

001/002 MMU section for at least two shifts. Slip op., supra at 8. Additionally, Inspector Dotson

had specifically warned McCoy Elkhorn six days before the citation was issued that better efforts

were required to remedy the accumulation problem in the mine. Tr. I 158-61; Gov’t Ex. 4,

10/11/17 notes at 17. The operator then was on heightened awareness that it needed to expend

greater efforts to clean up accumulations.

Given this warning, McCoy Elkhorn’s failure to even list the extensive accumulations on

its preshift reports so that its foremen could take appropriate cleanup efforts constitutes a high

36 FMSHRC Page 2000
level of indifference to Mine Act requirements. See National Mining Assoc. v. MSHA, 116 F.3d

520, 540 (D.C. Cir. 1997) (“preshift examinations assess the overall safety conditions in the mine;

. . . identify hazards . . .; and through this identification facilitate correction of hazardous

conditions.”) By failing to list obvious accumulations on the two preshift reports preceding the

inspector’s arrival, McCoy Elkhorn disregarded the safety of the oncoming miners and displayed a

high degree of negligence. See Deshetty, 16 FMSHRC at 1053 (failing to remedy known

accumulation hazards indicates high degree of negligence). 

Although the Secretary initially designated the negligence as only moderate, it is well

established that the Commission and its Judges may modify the negligence determination. Spartan

Mining Co., 30 FMSHRC 699, 723-25 (Aug. 2008). 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, 5 FMSHRC 287, 291 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). 

Substantial evidence in the record supports a high level of negligence as well as an accompanying

increase in the penalty amount to $6,500. Accordingly, we affirm the Judge in result.

III.

Conclusion

For the foregoing reasons, we affirm the Judge’s determination that McCoy Elkhorn’s

accumulations violation, as set forth in Citation No. 7432120, is S&S and the result of an

unwarrantable failure to comply with section 75.400. We also affirm the determination that Jason

Robinson was liable for a section 110(c) penalty with respect to that accumulations violation. We

affirm in result the Judge’s determination that the preshift violation, set forth in Citation 

No. 7420523, was a result of high negligence and affirm the associated penalty.

/s/ Mary Lu Jordan, 

Mary Lu Jordan, Chairman

/s/ Robert F. Cohen, Jr., 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

36 FMSHRC Page 2001
Commissioners Young and Althen, concurring in part and dissenting in part:

We concur with our majority colleagues in affirming the Judge’s findings that the

accumulations violation was both significant and substantial and a result of McCoy Elkhorn’s

unwarrantable failure to comply with 30 C.F.R. § 75.400. We also agree with the majority’s

conclusion that substantial evidence supports the Judge’s conclusion that McCoy was highly

negligent in failing to conduct an adequate preshift violation. We therefore join our colleagues on

those sections of their opinion. Slip op. at 4-10, 14-15.

However, we disagree with the majority’s conclusion that McCoy’s foreman Jason

Robinson should be held personally liable for the accumulations violation pursuant to section

110(c), 30 U.S.C § 820(c), of the Mine Act. The majority fails to account for direct testimony and

evidence which detracts from the Judge’s conclusion that Robinson “‘knowingly’ permitt[ed] the

combustible coal dust and loose coal . . . to develop without ordering the timely removal of the

violative accumulations.” 33 FMSHRC 2403, 2422 (Oct. 2011) (ALJ). As a result, the Judge

failed to consider the evidence as a whole, especially evidence fatal to his conclusion that

Robinson is personally liable under section 110(c).

Robinson testified that no mining occurred on the morning of October 17, the date of

Inspector Dotson’s inspection. Tr. II 671. The direct testimony of two other miners on

Robinson’s crew, right-side continuous miner operator William Lowe (Tr. II 457-58, 465-66), and

left-side shuttle car operator Ricky Varney (Tr. II 534-35, 543, 570), corroborates Robinson’s

testimony. Further, Michael Diamond, the foreman on the shift preceding Robinson, and

Robinson both testified that no scoop was available for use at the start of Robinson’s shift, because

one scoop was down and the other needed re-charging, making it virtually impossible for

Robinson’s crew to clean any coal cut on the morning of October 17, prior to Inspector Dotson’s

arrival. Tr. I 75, 82, 102-04. Moreover, there was no evidence of coal accumulations or coal

being transported out of the mine on belts on the morning of October 17, which would have

indicated that mining occurred. Gov’t Ex. 6; Tr. I 353-54. Diamond also testified that on his shift,

his crew finished the cut in 6-Left, which was started on the preceding shift, into the No. 5 entry. 

Tr. I 68-69, Tr. II 583-87. This is consistent with the mining pattern and the inspector’s own map

of the mine on the morning of his inspection, showing no cuts in the 3-right crosscut (3-R) and the

5 Heading (5-H), where the continuous miners were left by the third shift because they were the

next cuts to be made in the mining sequence. Gov’t Ex. 2; Tr. II 527, 604. The unequivocal and

convincing evidence that no mining occurred in 5-H prior to the inspector’s arrival and other direct

testimony wholly undermines the inspector’s notes that Robinson said he had mined 5-H.

Inspector Dotson even admitted that the testimony of Diamond was consistent with the mine’s

normal mining pattern. Tr. I 205, Tr. III 449-50.

Against all this evidence, the majority relies on the inspector’s discredited notes and only

circumstantial evidence to support its conclusion that substantial evidence supports the Judge’s

finding that mining did take place on the morning of October 17 during Robinson’s shift. Despite

clear and convincing evidence that the inspector’s notes were unreliable, the majority relies on the

Judge’s credibility determination regarding the inspector’s notes. Slip op. at 12-13. The majority

also falls into the trap of adopting the Judge’s inference that because Dotson testified that he was

told by Robinson that he knew about the inadequate bolting for about four hours, that means that

36 FMSHRC Page 2002
Robinson ordered the cuts at 3-R. Slip op. at 12; Tr. III 439; Gov’t Ex. 5, 10/17/07 notes at 17. 

Finally, the majority relies on the operator’s production reports of the preceding shifts, which did

not note a small (perhaps 10 foot) cut in 3-R, to support the inference that Robinson made that cut

on his shift. Slip op. at 11-12. However, as we will see, inferences drawn from minor

circumstantial evidence falls far short when compared to direct testimony of four miners and the

inspector showing that no mining occurred prior to the inspection. The totality of the evidence,

indeed overwhelming evidence, supports the conclusion that mining resumed after Dotson’s

inspection.

As our majority colleagues state, section 110(c) of the Mine Act provides that a director,

officer, or agent of a corporate operator who knowingly authorized, ordered, or carried out a

violation of a mandatory health or safety standard shall be subject to an individual civil penalty. 

30 U.S.C. § 820(c). The proper legal inquiry for determining liability under section 110(c) is

whether the corporate agent knew or had reason to know of a violative condition. Kenny

Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff’d on other grounds, 689 F.2d 632 (6th Cir. 1982),

cert. denied, 461 U.S. 928 (1983); accord Freeman United Coal Mining Co. v. FMSHRC, 108

F.3d 358, 362-64 (D.C. Cir. 1997). A knowing violation occurs when an individual “in a position

to protect employee safety and health fails to act on the basis of information that gives him

knowledge or reason to know of the existence of a violative condition.” Kenny Richardson, 3

FMSHRC at 16. Section 110(c) liability is predicated on aggravated conduct constituting more

than ordinary negligence. BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992).

Below, the Judge predicated his conclusion that Robinson was personally liable under

section 110(c) on his findings that Robinson, who knew of the extensive accumulations, allegedly

directed his crew to make two small mining cuts before initiating cleanup of the accumulations. 

33 FMSHRC at 2425. Based on this finding, the Judge concluded that Robinson deliberately

failed to act to protect miners on his crew.

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.,

11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,

229 (1938)). In reviewing the whole record, an appellate tribunal must consider anything in the

record that “fairly detracts” from the weight of the evidence that supports a challenged finding. 

Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting Universal Camera Corp. v.

NLRB, 340 U.S. 474, 488 (1951)).

First, we conclude that substantial evidence does not support the Judge’s finding that

Robinson ordered the cuts on his shift. Both the Judge below and the majority on review discount

or ignore direct testimony and rely principally on circumstantial evidence to support the Judge’s

finding that mining occurred on the morning of Inspector Dotson’s October 17 inspection. This

finding essentially serves as the entire basis of the Judge’s conclusion that Robinson was liable

under section 110(c).

36 FMSHRC Page 2003
1

 It appears that the Judge drew an inference based on circumstantial evidence consisting

of the inspector’s notes and certain testimony and record evidence that the cuts were not made on

the prior shift, and hence, must have been made by Robinson’s crew on the morning of October

17. 33 FMSHRC at 2416-18. While the Judge is permitted to draw inferences from the evidence

before him, such inferences must be “inherently reasonable and there [must be] a logical and

rational connection between the evidentiary facts and the ultimate fact inferred.” Mid-Continent

Res., Inc., 6 FMSHRC 1132, 1138 (May 1984). Here, the Judge failed to adequately take into

account contrary direct evidence, which undermines the basis for his inference, instead “cherry

picking” and crediting the evidence which only supports his ultimate finding.

In finding that Robinson ordered the cuts on 3-R and 5-H, the Judge relied almost

exclusively on the inspector’s notes, because the inspector had no independent recollection of his

conversation with Robinson. 33 FMSHRC at 2425; Gov’t Ex. 5, 10/17/07 notes, at 7; Tr. III 450-

51, 479-81. Based on the inspector’s notes and the inspector’s testimony that Robinson

acknowledged that on the morning of October 17 he was aware of the improperly bolted roof

condition for four hours, the Judge found that Robinson’s crew had made the cuts in the early

morning hours of their shift.1 Slip op. at 11-12 (citing Tr. III 438-40; Gov’t Ex. 5, 10/17/07 notes

at 17). The majority also relies on the production reports to support that the cuts had not been

made on the prior shift. Slip op. at 11-12 (citing Gov’t Ex. 2). This evidence, equivocal at best, is

insufficient to support a conclusion that Robinson knowingly violated the Act in the face of

testimony that refuted the inspector’s thesis.

The Judge failed to adequately reconcile contrary direct evidence that wholly undermines

the inspector’s notes, namely the testimony of every miner corroborating Robinson’s testimony

that no mining was performed in the morning of the inspection. The evidence also demonstrated

that the inspector’s own map of the area was inconsistent with his notes and instead was consistent

with the miners’ direct testimony of no mining. Robinson and miners on his crew testified that no

coal was cut on the first shift until around 2 p.m. 33 FMSHRC at 2416-18; Tr. II 377-78, 457, 466-

67, 476-78, 499, 534-35, 543, 570. Because no scoops were available, had mining immediately

commenced on the first shift, the coal almost certainly could not have been cleaned before the

inspector’s arrival. Tr. I 75, 82, 94-95, 102-04; Tr. II 457-58; Gov’t Ex. 2. Yet, the area was

clean. This direct evidence undermines the inference that the cuts were made at the start of

Robinson’s shift.

Regarding the alleged cut at 5-H, substantial evidence does not support a finding that a cut

was taken before abatement. Such a cut would be inconsistent with (1) the inspector’s own map

which showed 5-H no further advanced than at the end of the preceding shift, and no coal

accumulation in the area, which would indicate that it had been mined on the first shift (Gov’t Ex.

6; Tr. I 191; Tr. II 673); (2) the testimony of highly experienced miners and the inspector about

McCoy’s usual mining sequences and that a cut at 5-H would contravene this mining pattern (Tr. I

71-73, 125-29, 205, 208, 428; Tr. II 458, 524-27); (3) Diamond’s testimony that he finished the 6L

cut and was flush with the entry, consistent with McCoy’s normal mining pattern (Tr. II 512-13,

582-87); (4) the testimony of the right side miner operator, William Lowe, that when he got to the

section he was told to standby and then was given a shovel, told to start shoveling, and spent the

36 FMSHRC Page 2004
next several hours shoveling (Tr. II 465-66); and (5) Robinson’s own direct testimony. Thus, the

clear weight of the evidence undermines reliance upon the inspector’s notes.

As to the alleged cut at 3-R, the majority cites only circumstantial evidence for cutting on

3-R, largely ignoring the direct testimony of disinterested miners and Robinson himself. Slip op.

at 11-12. Contrary to that circumstantial evidence is the direct testimony of the left side shuttle car

operator who repeatedly testified that they did not cut coal in the morning and that they made a cut

in 3-R that afternoon after 2:00 p.m. Tr. II 531-32, 543, 546-47, 560. Also, on direct examination,

Robinson testified that there was a small cut in 3-R when he inspected the section in the morning:

Q. It was flush. What about in 3 right? Is there – from [the

inspector’s] diagram, does it look to you like anyone would have cut

coal in 3 right on your shift?

A. No. Nobody cut coal on my shift. There was a small cut of 3

right, but it was not done by me or anybody on my shift.

Q. Okay. And if 3 right had been cut that morning on your shift,

would it be clean as Mr. Dotson has written in that area?

A. If I would have cut – I didn’t have a scoop till after Mr. Dotson

got there. This is the only time I had ever used a scoop. So it

couldn’t have been cleaned. It had to be cleaned from the previous

shift.

Tr. II 674. Likewise, the uncontroverted testimony is that no scoops were available during

Robinson’s shift. Hence, making it unlikely, if not impossible, for Robinson’s crew to make the

alleged cuts and clean up the section before Inspector Dotson arrived at 8:00 a.m. 33 FMSHRC at

2408; Tr. I 75, 82, 105, 191; Tr. II 471, 480-82, 557-58; Gov’t Ex. 2.

A judge’s credibility determinations are entitled to great weight and may not be overturned

lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh

Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). Nonetheless, the Commission will not affirm such

determinations if, as here, they are self-contradictory or dubious evidence supports them. 

Keystone Coal Mining Corp., 17 FMSHRC, 1819, 1881 n.80 (Nov. 1995); Consolidation Coal

Co., 11 FMSHRC 966, 974 (June 1989). We find the weight of this direct evidence so

overwhelming as to undermine the Judge’s credibility determination crediting the inspector’s

testimony and notes.

In whole, the totality of the evidence is insufficient to support the conclusion that Robinson

“knowingly” violated the Mine Act by ordering mining to proceed in the face of accumulations. 

The inspector’s notes-based testimony is contradicted by overwhelming direct evidence of

McCoy’s mining practices and the testimony of many miners as to the events leading up to and

occurring on Robinson’s shift, undermining a finding that mining occurred at the beginning of the

first shift on October 17. Rather, the record as a whole proves that as soon as Robinson became

36 FMSHRC Page 2005
aware of the extent of the accumulations, he ordered his crew not to mine and to instead devote

their resources exclusively to cleaning the accumulations. Tr. I 94-95, 103-04. 

Second, even if we were to infer that the record shows that Robinson had permitted some

small amount of mining to commence on the morning of October 17, even the majority points to

Robinson’s decision to stop mining and to have the entire crew of 14 persons engage solely in

cleanup prior to the inspector’s arrival. Slip op. at 8. This fact undermines the majority’s

conclusion that he knowingly acted in failing to protect miners. Rather, such evidence

unequivocally undermines the Judge’s conclusion that Robinson knowingly violated the Act.

Thus, even accepting the Judge’s credibility determination and findings, the evidence at

most shows that Robinson arrived at the section, performed an imminent danger run of the relevant

area, prepared his crew for production, began production on the right side cutting into the 3-R

section, before Robinson walked the section and saw accumulations, shut down production, and

ordered his crew to stop mining and start cleaning the accumulations. Tr. I 94-95, 102-04.

Since the small cut in 3-R would have taken no more than 20 minutes (Tr. II 461),

presumably all this would have happened within an hour or so of the start of the shift – before the

inspector arrived at the mine. There is no evidence at all supporting any theory of aggravated

conduct on Robinson’s part, given Dotson’s testimony that no mining occurred during his

inspection. Tr. II 353-54. Thus, any production occurred either in a brief period before Dotson

arrived, or after 2 p.m., as Robinson and every other miner testified.

Given the mine’s conditions experiencing high rib sloughage, we cannot conclude that the

foreman’s actions rose to the level of conduct amounting to a violation of section 110(c). Even if

the inspector’s notes were accepted as reliable, Robinson did not commit a knowing violation by

not immediately correcting a problem that had persisted over multiple shifts, when upon

discovering the violative condition shortly after the start of his shift, he promptly stopped

production to address it. This evidence even accepting the Judge’s erroneous fact findings, as the

majority has, does not demonstrate aggravated conduct constituting more than ordinary

negligence. See Roy Glenn, 6 FMSHRC 1583, 1586 (July 1984) (stating that a violation of section

110(c) occurs “when, based upon facts available to him, [an agent] either knew or had reason to

know that a violative condition or conduct would occur, but failed to take appropriate preventative

steps”) (emphasis added); Cannelton Indus., Inc., 20 FMSHRC 726, 736-37 (July 1998) (holding

that Judge erred by failing to take into consideration evidence regarding agents’ efforts to clean up

accumulations when determining section 110(c) liability).

36 FMSHRC Page 2006
Accordingly, we conclude that neither the record nor the law supports the Judge’s holding

that Robinson is personally liable under section 110(c).

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

 

36 FMSHRC Page 2007
Distribution:

Melanie J. Kilpatrick, Esq.

Rajkovich, Williams, Kilpatrick & True, PLLC

3151 Beaumont Centre Circle, Suite 375

Lexington, KY 40513

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Robin Rosenbluth, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2228

Arlington, VA 22209

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Administrative Law Judge Jerold Feldman

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

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

Washington, D.C. 20004

36 FMSHRC Page 2008
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

August 26, 2014

SECRETARY OF LABOR, : 

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) : Docket Nos. WEST 2009-241 

 : WEST 2009-580 

v. : WEST 2009-820

 : WEST 2009-1322

TWENTYMILE COAL COMPANY :

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

DECISION

BY THE COMMISSION:

These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30

U.S.C. §801 et seq. (2012) (“Mine Act”), and involve three citations issued to Twentymile Coal

Company by the Department of Labor’s Mine Safety and Health Administration (“MSHA”).

Two citations allege violations of the safety standard in 30 C.F.R. § 75.516-2(c), which requires

that additional insulation shall be provided at points where a communication circuit passes over

or under a power conductor. The third citation alleges a violation of the safety standard in 

30 C.F.R. § 75.1107-16(b), which incorporates the requirements of six specific National Fire

Protection Association Codes.

An Administrative Law Judge affirmed the two citations issued for alleged violations of

section 75.516-2(c) and held that the standard directs mine operators to manually apply

additional insulation to the exterior of communication circuits where they pass over or under any

power conductor. 33 FMSHRC 1885, 1945 (Aug. 2011) (ALJ). The Judge, however, vacated

the citation that alleged a violation of section 75.1107-16(b). The Judge concluded that the cited

provisions of the National Fire Code did not constitute mandatory requirements. Id. at 1939. 

The Secretary of Labor and Twentymile both filed petitions for review of the Judge’s decision,

and we granted both petitions.

For the reasons that follow, we reverse the Judge with respect to the alleged violations of

section 75.516-2(c). We conclude that an operator may provide additional insulation through the

installation of a compliant communication cable. With respect to the alleged violation of section

75.1107-16(b), we conclude that the Secretary failed to establish a violation of a cited provision.

36 FMSHRC Page 2009
Therefore, we affirm in result the Judge’s decision to vacate the citation that alleged a violation

of section 75.1107-16(b).

I.

Citation Nos. 8456301 and 8456311

A. Factual and Procedural Background

On February 19, 2009, MSHA Inspector Phillip Ray Gibson visited Twentymile’s Foidel

Creek Mine, a large underground coal mine in Colorado. During his inspection, Gibson

observed that communication cables for the mine phone passed below an energized power

conductor in the conveyor belt entry. 33 FMSHRC at 1940. The communication cables

consisted of copper conductors that were covered in a layer of insulation, surrounded by foil

shielding, and wrapped in a PVC jacket. 33 FMSHRC at 1941-43; Tr. 421, 446-47. The

inspector observed that the exterior of the cables lacked an additional wrap of insulation where

they passed across two power cables. 33 FMSHRC at 1940. Gibson issued Citation No.

8456301 for an alleged violation of the safety standard in 30 C.F.R. § 75.516-2(c). Gov. Ex. 26. 

The standard states, in pertinent part, that “[a]dditional insulation shall be provided for

communication circuits at points where they pass over or under any power conductor.” 30

C.F.R. § 75.516-2(c). 

On February 26, 2009, Gibson returned to the mine and observed that Twentymile had

failed to manually wrap “additional insulation” on either the phone communication cable or the

energized power cable at the point where they passed in a crosscut. 33 FMSHRC at 1940. 

Gibson issued Citation No. 8456311 for an alleged violation of the standard in section 75.516-

2(c). Gov. Ex. 29. The citation was abated after Twentymile wrapped electrical tape around the

communication cable at the required points. 33 FMSHRC at 1943.

Twentymile contested both citations before an Administrative Law Judge. The Judge

concluded that the language of the regulation was clear and that mine operators are required to

manually install “additional insulation” at the points where communication circuits pass a power

conductor. Id. at 1945. The Judge credited the testimony of Twentymile’s electrical department

manager, who testified that the cables contained sufficient insulation to prevent the transfer of

energy to the communication circuits. Id. at 1943-45; Tr. 446-48. Nevertheless, the Judge

concluded that, because Twentymile did not manually wrap additional insulation around the

exterior of the cables at the required locations, it had violated the safety standard. Id. at 1945. 

Accordingly, he affirmed the citations.

On review, Twentymile argues that the Judge erred in his interpretation of the safety

standard. It maintains that the required “additional insulation” was “provided” when it installed

a cable manufactured with sufficient insulation to meet the objective and requirement of the

standard. The Secretary contends that the safety standard plainly requires the mine operator to

install insulation “in addition to whatever insulation is provided (or not provided) by the

manufacturer.” S. Br. at 28. 

36 FMSHRC Page 2010
1

 Section 75.516-2(b), which incorporates section 75.517-1 by reference, requires

insulation with a dielectric strength that is at least equal to the voltage of the circuit. See 30

C.F.R. §§ 75.516-2(b) and 75.517-1. The Secretary does not contend that the insulation on any

of the cited cables was less than the appropriate dielectric strength or that the amount of

insulation was otherwise insufficient. Oral Arg. Tr. at 47. 

B. Disposition

1. The standard is silent or ambiguous with regard to how compliance is

to be achieved.

Where the language of a regulatory provision is clear, the terms of that provision must be

enforced as they are written unless the regulator clearly intended the words to have a different

meaning or unless such a meaning would lead to absurd results. Jim Walter Res., Inc., 

28 FMSHRC 983, 987 (Dec. 2006) (quoting Dyer v. United States, 832 F.2d 1062, 1066 

(9th Cir. 1987) (citations omitted)); Alan Lee Good, 23 FMSHRC 995, 997 (Sept. 2001); Lopke

Quarries, Inc., 23 FMSHRC 705, 707 (July 2001); Jim Walter Res., Inc., 19 FMSHRC 1761,

1765 (Nov. 1997).

We conclude that the Judge erred in holding that the language of the safety standard had

a clear meaning. 33 FMSHRC at 1945. Section 75.516-2(c) requires that a mine operator

provide insulation on a cable in addition to the insulation requirements specified in section

75.516-2(b) at certain points.1

 However, the safety standard does not clearly prescribe how the

additional insulation is to be provided. The language does not dictate a specific method, be it

manually wrapping additional insulation on the exterior of the cable or the installation of cable

that contains a greater amount of insulation than is required by section 75.516-2(b). 

The Secretary contends that the plain meaning of the phrase “shall be provided” in

section 75.516-2(c) is that the mine operator, and not a manufacturer, must provide the

additional insulation. S. Br. at 27-28; Oral Arg. Tr. 29-30, 34-36. The Judge agreed that the

language of the standard was “quite clear.” 33 FMSHRC at 1945. However, the phrase “shall

be provided” is used elsewhere in the regulations in the context of equipment installed by a

manufacturer at the factory. Those standards do not plainly require a mine operator to manually

install the prescribed features. See 30 C.F.R. § 56.14131(a) (“Seat belts shall be provided and

worn in haulage trucks.”); see also 30 C.F.R. § 77.1605(d) (“Mobile equipment shall be

provided with audible warning devices. Lights shall be provided on both ends . . . .) (emphasis

added). The use of the phrase “shall be provided” elsewhere in the regulations demonstrates that

it does not have a plain meaning which excludes installation by a manufacturer.

Finally, we find no guidance as to the meaning of the phrase “shall be provided” in the

standard’s regulatory history. See 37 Fed. Reg. 11777 (June 14, 1972); 38 Fed. Reg. 4975 

(Feb. 23, 1973). It suggests only that the Bureau of Mines originally proposed the rule to ensure

proper insulation and prevent unintentional energization of communication circuits. See 37 Fed.

Reg. at 11777-11778 (“unintentional energization of communication wires and cables can occur

36 FMSHRC Page 2011
2

 We recognize that in Western Fuels - Utah, Inc., 18 FMSHRC 1912, 1915 (Nov. 1996),

the Commission said that “the language of section 75.516-2(c) is clear.” However, this was a

case where the operator conceded that it had not provided additional insulation for a

communication cable. The operator defended against the citation on the grounds that the first

sentence of section 75.516-2(c) limited the subsection as a whole to track entries, a contention

which the Commission rejected. The Commission did not address the issue of whether the

phrase “shall be provided” in the second sentence of section 75.516-2(c) has a plain meaning

which precludes installation of the additional insulation by a manufacturer of the cable. 

if they are too close to power conductors . . . proper insulation of such wires and cables will

result in less hazard and greater reliability”). 

Similarly, we reject the Secretary’s argument that the phrase “additional insulation” can 

only mean extra insulation on the cable at the points where communication circuits pass over or

under a power conductor. S. Br. at 29. The phrase “additional insulation” can also be

understood as relative to the insulation which must exist on all communication cables which,

pursuant to sections 75.516-2(b) and 75.517-1, must have “a dialectric strength at least equal to

the voltage of the circuit.” 30 C.F.R. § 75.517-1. Thus, the regulation can reasonably be read to

require insulation with a dialectric strength greater than the voltage of the circuit, at points

where communication circuits pass over or under a power conductor.

Accordingly, we conclude that section 75.516-2(c) is silent or ambiguous as to how the

additional insulation shall be provided by the operator.2

2. The Secretary’s proffered interpretation is not reasonable.

Where a mandatory standard is ambiguous, courts and the Commission defer to the

Secretary’s reasonable interpretation of the regulation. See Energy West Mining Co. v.

FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994); accord Sec’y of Labor v. Western Fuels-Utah,

Inc., 900 F.2d 318, 321 (D.C. Cir. 1990) (“agency’s interpretation . . . is ‘of controlling weight

unless it is plainly erroneous or inconsistent with the regulation’”) (quoting Bowles v. Seminole

Rock & Sand Co., 325 U.S. 410, 414 (1945)). The Commission's review similarly involves an

examination of whether the Secretary’s interpretation is reasonable. See Consolidation Coal

Co., 14 FMSHRC 956, 969 (June 1992); Rochester & Pittsburgh Coal Corp., 12 FMSHRC 189,

193 (Feb. 1990); Missouri Rock, Inc., 11 FMSHRC 136, 139 (Feb. 1989). 

The Secretary maintains that his interpretation of the standard is consistent with the

standard’s purpose because it ensures that the operator will pay attention to insulation on the

cables at the required points, safeguarding against unintentional energization. S. Br. at 30-31. 

The Secretary accepts “a wrap of electrical tape” at the required location to constitute the

installation of additional insulation. 33 FMSHRC at 1943; Tr. 434-35. At oral argument,

counsel for the Secretary also suggested that it is reasonable to require that the operator install

the additional insulation to the exterior of the cable, because it signals to an inspector that the

operator has examined the communication cable at the points where it passes the power cable. 

Oral Arg. Tr. at 27-28, 39, 50. 

36 FMSHRC Page 2012
3

 We note that the Secretary takes issue with the Judge’s statement that the requirement

of additional insulation in section 75.516-2(c) is “obsolete” due to technological improvements

in the insulation of communication circuits and power conductors. 33 FMSHRC at 1945; S. Br.

at 29-30. Our determination that the Secretary’s interpretation of section 75.516-2(c) is

unreasonable is based on the considerations set forth herein. We are not suggesting in any way

that the regulation is obsolete. 

We conclude that the Secretary’s interpretation is not reasonable and does not advance

mine safety. The Secretary would require the manual application of additional insulation to any

cable, even a cable that contains abundant amounts of insulation. According to the Secretary,

simply wrapping electrical tape around the communication cable or the power cable, regardless

of the amount of insulation already existing, would be enough to comply with the standard. Oral

Arg. Tr. at 62-63. The Secretary’s interpretation is not supportable because it leads to results

that may have the perverse effect of discouraging the purchase and use of communication cables

that are manufactured with redundant layers of insulation. 

We also find unpersuasive the Secretary’s argument that the additional insulation must be

manually installed over the manufacturers’ cables to create a signal for the inspector. We fail to

see the benefit of a signal that merely indicates that a communication cable was once examined

at some unknown past time. Neither the language of the standard nor its regulatory history

suggests that a mine operator is required to flag the areas in question as being compliant. 

Instead, the regulatory history suggests that the goal of the safety standard is to ensure the proper

insulation of wires and cables to prevent unintentional energization. See 38 Fed. Reg. at 4975. 

We conclude that the Secretary’s interpretation should not be accorded deference as a

reasonable interpretation. The safety standard simply requires the presence of “additional

insulation” at points where communication circuits pass over or under power conductors. 

Accordingly, a mine operator may “provide” additional insulation by using a communication

cable that contains insulation that is more than sufficient to comply with the requirements of

section 75.516-2.3

 The Judge’s decision with respect to Citation Nos. 8456301 and 8456311 is

reversed, and the citations are vacated. 

II.

Citation No. 7622372

A. Factual and Procedural Background

On December 10, 2008, Inspector James Preece began an inspection of the Foidel Creek

Mine. 33 FMSHRC at 1934. Preece observed that sprinkler heads for the fire suppression

system along the Three Main North belt were covered in a layer of rock dust. Id. at 1934-35; 

Tr. 379, 381-82, 384-85; Gov. Ex. 21. He issued Citation No. 7622372 for an alleged violation

of the safety standard in 30 C.F.R. § 75.1100-3, which provides that “[a]ll firefighting equipment

shall be maintained in a usable and operative condition.” Gov. Ex. 21. 

36 FMSHRC Page 2013
4

 In his post-hearing brief, the Secretary alleged that Twentymile had also violated a

provision of NFPC No. 13A which provides: “[i]t is of prime importance to keep sprinklers in

good condition. If they are subject to loading with dust or foreign material, the authority having

jurisdiction should be consulted.” S. Post-Hearing Br. at 39-40; Gov. Ex. 23. The Secretary

alleged in the brief that Twentymile failed to consult with MSHA. S. Post-Hearing Br. at 39-40. 

However, Citation No. 7622372 did not allege a failure to consult with MSHA about the

condition of the sprinklers. Gov. Ex. 21. Moreover, when asked about the basis for the citation,

Inspector Preece testified about the requirement to maintain sprinklers in good condition, but did

not mention a failure to consult with MSHA. Tr. 380-81, 395-96. In his brief to the

Commission, the Secretary says in a one-sentence footnote that he also relies on the NFPC No.

13A provision requiring consultation with “the authority having jurisdiction.” S. Br. at 19 n.11.

No further explanation is provided. The Commission concludes that the Secretary’s claim that

Twentymile failed to consult with MSHA about the sprinkler was not supported by a sufficient

allegation in the citation or by evidence at the hearing, and was essentially waived on appeal.

Prior to the hearing, the Judge granted the Secretary’s motion to amend the citation to

allege a violation of the safety standard in 30 C.F.R. § 75.1107-16(b). 33 FMSHRC at 1935. 

The standard provides that “[e]ach fire suppression device shall be tested and maintained in

accordance with the requirements specified in the appropriate National Fire Code . . . National

Fire Code 13A ‘Care and Maintenance of Sprinkler Systems’ (NFPA No. 13A - - 1971).” 

30 C.F.R. § 75.1107-16(b) (herein after referred to as “NFPC 13A”). The Secretary alleged that

Twentymile violated a provision of NFPC No. 13A, which states that “[s]prinklers should be

checked regularly to make sure that they are in good condition, clean, free from corrosion or

loading, not painted or whitewashed, and not bent or damaged.”4 S. Post-Hearing Br. at 38-39;

Gov. Ex. 23.

The Judge concluded that the Secretary failed to allege a violation of a mandatory safety

standard. 33 FMSHRC at 1939. The Judge stated that section 75.1107-16(b) incorporates only

the “requirements” of NFPC No. 13A. Id. He noted that the relevant provisions use the term

“should” in their directive language, which normally indicates the non-mandatory nature of a

regulation. Id. at 1938-39 (citing Utah Power & Light Co., 11 FMSHRC 1926, 1931-32 (Oct.

1989)). Therefore, the Judge concluded that the cited provisions are not among the

“requirements” that mine operators must comply with pursuant to section 75.1107-16(b). Id. at

1939. In a footnote, the Judge stated that “[e]ven if the subject National Fire Code provisions

could be considered as mandatory safety standards, I find that the Secretary failed to establish a

violation.” Id. at 1939 n.5. The Judge credited the testimony of Edwin Brady, the maintenance

manager who had worked at the mine for more than 20 years, over that of Inspector Preece. Id.

at 1936-37, 1939 n.5.

On review, the Secretary maintains that it is irrelevant whether the cited provisions use

advisory language because the cited provisions were made mandatory through incorporation by

section 75.1107-16(b). The Secretary further alleges that the testimony of Inspector Preece was

sufficient to establish a violation. Twentymile argues that the plain language of section 75.1107-

16(b) incorporates only those provisions in the National Fire Code that are written with

36 FMSHRC Page 2014
5

 At one point in his cross-examination, Inspector Preece mentioned that coal dust as

well as rock dust was present on the sprinkler heads. Tr. 392. However, this contradicted all of

his references to the substance of the sprinkler heads in his direct examination. Tr. 379, 381-82,

385. It also contradicted the citation Preece issued, which only refers to rock dust. Gov. Ex. 21. 

The Secretary adduced no evidence as to the amount of coal dust. Hence, the Secretary’s

evidence fails to prove a violation of section 75.1107-16(b) based on the existence of material

other than rock dust on the sprinkler heads at the mine.

mandatory language, and that the Judge properly credited the testimony of Mr. Brady over that

of Inspector Preece.

B. Disposition

We conclude that under the specific circumstances of this case, we need not reach the

issue of whether 30 C.F.R. § 75.1107-16(b) makes the cited provisions of NFPC No. 13A

mandatory. Even if we were to find the NFPC No. 13A provisions mandatory, the Secretary has

not proven those provisions would be violated in this case.

Because this case involves an alleged violation due to the presence of rock dust on

sprinklers heads, we must consider the case in the context of the use of rock dust in underground

coal mining.5 It is undisputed that there was a coating of rock dust on the sprinkler. The

inspector testified that he observed the sprinklers covered with rock dust and this is supported by

Government Exhibit 22, photos of a sprinkler with rock dust all over its surface. However, and

very importantly, it is also beyond dispute that rock dust is essential to safety in an underground

coal mine.

Adequate rock dusting is necessary to prevent the propagation of a mine explosion – the

deadliest danger in an underground coal mine. In enacting the Coal Act and subsequently the

Mine Act, Congress was explicit about the requirement of rock dusting. Thus, section 304(c) of

the Mine Act provides: “All underground areas of a coal mine, except those areas in which the

dust is too wet or too high in incombustible content to propagate an explosion, shall be rock

dusted to within forty feet of all working faces, . . . unless the Secretary or his authorized

representative permits an exception upon his finding that such exception will not pose a hazard

to the miners.” 30 U.S.C. § 864(c).

Moreover, Congress was explicit about where rock dust must be applied and the amount

of rock dust necessary. Thus, section 304(d) of the Act provides:

(d) Where rock dust is required to be applied, it shall be distributed

upon the top, floor, and sides of all underground areas of a coal

mine and maintained in such quantities that the incombustible

content of the combined coal dust, rock dust, and other dust shall

be not less than 65 per centum, but the incombustible content in

the return aircourses shall be no less than 80 per centum.

36 FMSHRC Page 2015
6

 Compare MSHA’s Program Policy Manual (referring to a different regulation 

(30 C.F.R. § 75.1107-4) where it states: “[t]o be effective, all heat detecting sensors, including

sprinklers, must be kept free of oil, grease, rock dust, and other materials that may have an

insulating effect.” V MSHA, U.S. Dep’t of Labor, Program Policy Manual, Part 75, at 115

(2003). 

7

 The operator’s witness testified that to remove the rock dust from the sprinklers, the

sprinkler heads would need to be washed off with a high pressure hose, and that given the

delicate nature of the sprinklers, washing with such a hose could potentially damage the heads. 

Tr. 411.

30 U.S.C. § 864(d). Testimony at trial in this case established that rock dust is necessary in belt

entries. Tr. 410.

The relevant provision of NFPC No. 13A at issue here states: “Sprinklers should be

checked regularly to make sure that they are in good condition, clean, free from corrosion or

loading, not painted or whitewashed, and not bent or damaged.” Gov. Ex. 23; Tr. 380-81. 

Although “clean” is not the term that comes to mind upon viewing the photos, the Secretary has

failed to demonstrate through the evidence presented in this case that provisions of NFPC 

No. 13A have been violated by the presence of the depicted rock dust. As the Judge found,

MSHA Inspector Preece’s knowledge of Twentymile’s sprinkler system, how it activates and

whether the presence of rock dust would delay the activation was vague and not very convincing,

and Inspector Preece appeared to misunderstand how the mine’s sprinkler system operated. 

33 FMSHRC at 1939 n.5. 

We find no evidence in the record of a regulatory connection between rock dust, which

was likely not considered in drafting NFPC No. 13A, and the performance of sprinklers in a

mine. No such connection is apparent on the face of the cited provisions,6

 and the record raises a

question as to the feasibility of implementing the Secretary’s interpretation in an underground

mine.7

 It would not be necessary that the Secretary prove a particular sprinkler was not

functional for it to be deemed to be not “clean” if rock dust were within the scope of materials

comprehended by NFPC No. 13A. However, to find that rock dust is a material covered by

NFPC No. 13A, it is incumbent upon the Secretary to first show a sufficient regulatory

connection between the performance of a fire protection suppression system and rock dust on the

system.

In his post-hearing brief, the Secretary relied only on the definition of “clean” and even

then argued only that “clean” is defined as “free from dirt or pollution.” The Secretary then went

on to state that “pollution” means something that “contaminates (an environment) especially

with man-made waste.” S. Post-Hearing Br. at 39. We do not agree that rock dust can

reasonably be considered “man-made waste.” Indeed, rock dust is a substance that MSHA

requires be applied liberally in underground mines. 30 C.F.R. §§ 75.402 and 75.403. Nor is

rock dust “dirt” as the word is used in Volume V of MSHA’s Program Policy Manual. Gov. Ex.

24; Tr. 385-86. 

36 FMSHRC Page 2016
Therefore, the Secretary did not provide adequate evidence to establish that the

circumstances of this case would fall within the scope of NFPC No. 13A. For the reasons stated

above, we affirm the Judge in result.

III.

Conclusion

For the foregoing reasons, the Judge’s decision with respect to Citation Nos. 8456301

and 8456311, which alleged violations of the standard governing additional insulation on

communication cables, 30 C.F.R. § 75.516-2(c), is reversed, and those citations are vacated. 

We also conclude that the Secretary failed to prove a violation of 30 C.F.R. § 75.1107-

16(b). Accordingly, the Judge’s decision to vacate Citation No. 7622372 is affirmed in result.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 2017
Distribution:

Melissa Robinson, Esq.

Jackson Kelly PLLC

1600 Laidley Tower

P.O. Box 553

Charleston, WV 25322

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Garris.Melanie@dol.gov

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Shumann.walter@dol.gov

Administrative Law Judge Thomas P. McCarthy

Federal Mine Safety and Health Review Commission

Office of Administrative Law Judges

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, D.C. 20004-1714

36 FMSHRC Page 2018
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSIOM

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

 August 26, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH : 

 ADMINISTRATION (MSHA) : Docket Nos. WEST 2009-1323 

 : WEST 2010-38

v. : WEST 2010-578

 :

TWENTYMILE COAL COMPANY :

 

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

DECISION

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

These proceedings arise under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (2012) (“Mine Act”), and involve an order and a citation that were 

issued to Twentymile Coal Company by the Department of Labor’s Mine Safety and Health

Administration (“MSHA”). Order No. 8460435 alleges that Twentymile failed to conduct

adequate on-shift examinations as required by the mandatory safety standard in 30 C.F.R. 

§ 75.362(b). Citation No. 8457448 alleges that Twentymile failed to provide additional

insulation at the point where a communication circuit contacted power cables as required by the

safety standard in 30 C.F.R. § 75.516-2(c).

The Administrative Law Judge vacated the order alleging an inadequate on-shift

examination, concluding that the Secretary failed to offer any proof of coal production during the

shift as required by section 75.362(b). 34 FMSHRC 2138, 2171 (Aug. 2012) (ALJ). The Judge

affirmed the citation issued for inadequate insulation. Id. at 2144.

We conclude that the Judge erred in his findings of fact concerning Order No. 8460435. 

He mistakenly ruled that the cited examination occurred during a non-production maintenance

shift, for which no on-shift examination is required. In addition, the Judge erred in finding that

Twentymile did not provide additional insulation to the cable as required by section 75.516-2(c). 

Accordingly, we vacate the Judge’s decision with respect to the on-shift examination order

(Order No. 8460435), vacate the additional insulation citation (Citation No. 8457448), and

remand the cases for further proceedings consistent with our decision.

36 FMSHRC Page 2019
1

 The standard requires that:

During each shift that coal is produced, a certified person shall

examine for hazardous conditions . . . along each belt conveyor

haulageway where a belt conveyor is operated. This examination

may be conducted at the same time as the preshift examination of

belt conveyors and belt conveyor haulageways, if the examination

is conducted within 3 hours before the oncoming shift.

30 C.F.R. § 75.362(b) (emphasis added). 

I.

The On-Shift Examination Order (Order No. 8460435)

A. Factual and Procedural Background

Twentymile owns and operates the Foidel Creek mine, a large underground coal mine in

Colorado. 34 FMSHRC at 2139. On August 11, 2009, at 11:30 a.m., MSHA Inspector Randy

Gunderson arrived at the mine’s 8 Main North belt conveyor to conduct an inspection. Id. at

2167; Gov. Ex. 2. The mine was on a maintenance shift, and the conveyor belt was not running. 

34 FMSHRC at 2171; Tr. 317, 347-49.

Inspector Gunderson observed coal accumulations along the belt haulageway that

measured approximately 600 feet long, 6 feet wide and 20 inches deep. 34 FMSHRC at 2168;

Tr. 294-298; Gov. Ex. 2. The accumulations contacted the belt at 12 points. 34 FMSHRC at

2168; Tr. 294; Gov. Ex. 2. Gunderson noted that rock dust was layered between the coal

accumulations, which included both loose coal as well as dry coal fines. Tr. 296-97, 301, 354. 

Where the accumulations contacted the belt, however, there was no rock dust. 34 FMSHRC at

2168; Tr. 298. Based on his observations, the inspector issued a citation alleging a violation of

the safety standard in 30 C.F.R. § 75.400, which prohibits the accumulation of coal in active

workings. Gov. Ex. 2. Twentymile admitted that these cited conditions constituted a significant

and substantial violation of the safety standard in section 75.400. 34 FMSHRC at 2168 n.28

(citing Unpublished Order at 1 (Sept. 21, 2011)); Tr. 302; Gov. Ex. 2; Gov. Ex. 40. 

As a result of the inspection, Gunderson also issued Order No. 8460435, which alleged a

violation of the on-shift examination requirement in 30 C.F.R. § 75.362(b) and specifically cited

the August 10 and August 11 examiner reports as inadequate.1 Gov Ex. 1. The cited

examination reports did not contain any mention of the coal accumulations in the belt

haulageway. Gov Ex. 4 at 18-22. The most recent of the examinations had been conducted

between 6:57 a.m. and 8:06 a.m on August 11. Id. at 22.

Twentymile contested this order at a hearing on the merits. On August 9, 2012, the Judge

issued a decision stating that while section 75.362(b) requires adequate examinations, this

36 FMSHRC Page 2020
2

 Conversely, the safety standard in 30 C.F.R. § 75.360 requires operators to conduct

examinations at fixed intervals, regardless of whether coal is produced on a particular shift. 

3

 The Commission applies the substantial evidence test when reviewing a Judge’s factual

determinations. 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., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 

particular standard only applies “during each shift that coal is produced.”2

 34 FMSHRC at 2171. 

The Judge stated that the inspector testified that the operator’s examination was conducted on

August 11 between 6:57 a.m. and 8:06 a.m. (hereinafter referred to as “the operator’s August 11

morning examination”) during a “maintenance shift.” Id. The Judge concluded that because the

Secretary failed to offer any evidence of coal production during the shift when the order was

issued, the Secretary had failed to prove that the standard was violated. Accordingly, the Judge

vacated the order. Id at 2171-72. 

On review, the Secretary argues that the Judge erred because the record demonstrates that

the operator’s August 11 morning examination actually was performed on a production shift –

the shift that occurred directly before the “maintenance shift” during which the MSHA

inspection occurred. 

B. Analysis

1. The operator’s August 11 morning examination was not

performed during the “maintenance shift,” but was performed

on the preceding production shift.

The threshold question in this case is whether the operator’s August 11 morning

examination occurred on a shift during which coal was produced. Specifically, we must

determine whether this examination was performed during the production shift or the subsequent

morning maintenance shift. Although the Judge found that the operator’s August 11 morning

examination was performed on the “maintenance shift” (34 FMSHRC at 2171 (citing Tr. 317)),

we conclude that this finding is not supported by substantial evidence.3

 

The Judge relied on the testimony of Inspector Gunderson but appears to have

misunderstood the inspector’s statements. At the hearing, Inspector Gunderson testified as

follows:

Q: And was the belt running during your inspection?

A: No

Q: Why not?

A: It was a maintenance shift, is what I was told.

36 FMSHRC Page 2021
Tr. 317. In the cited portion of the transcript, Gunderson was referring to the production status

of the mine at the time of his inspection. Gunderson inspected the mine and issued the order at

11:35 a.m. Gov. Ex. 1. Gunderson did not testify about the production status of the mine during

the time at which the operator’s August 11 morning examination was performed (between 6:57

a.m. and 8:06 a.m.). 

Although the Secretary did not introduce specific evidence of the mine’s shift schedules

or production reports, an examination of the record fully demonstrates that the cited August 11

morning examination occurred during the shift that immediately proceeded the maintenance

shift. 34 FMSHRC at 2172. Twentymile repeatedly represented that its August 11 morning

examination qualified as both an on-shift examination for the shift on which it was performed

and a pre-shift examination for the shift that was about to begin. T. Post-Hearing Br. at 37

(stating “[t]here is no dispute that there was a pre-shift/on-shift examination conducted [on the

morning of] August 11, 2009"), see also id. at 39-40; Oral Arg. Tr. 141-44. Section 75.362(b)

provides that the on-shift and pre-shift exams may be conducted simultaneously, if the

examination is conducted within three hours before the start of an oncoming shift. Because the

August 11 morning examination was a “pre-shift/on-shift examination,” a shift change must have

occurred at the mine within the three hours that followed the examination. Stated another way,

the inescapable conclusion drawn from Twentymile’s own representations is that a shift change

occurred at the mine between 8:06 a.m. (the time the operator’s morning examination concluded)

and 11:06 a.m. (the end of the three hour window referred to in section 75.362(b)). Gov. Ex. 4 at

22.

The order was issued at 11:35 a.m. (Gov. Ex. 1) after the shift change occurred. The

inspector testified that the mine was on a maintenance shift at the time the order was issued. 

Tr. 317. Accordingly, the operator’s August 11 early morning examination qualified as an onshift examination for the night shift ending on the morning of August 11 (the “graveyard shift”),

and as a pre-shift examination for the subsequent maintenance shift.

2. Twentymile conceded that coal was produced on the

“graveyard shift.”

In its post-hearing brief, Twentymile stated that it produced coal after it conducted the

cited August 11 on-shift examination. See T. Post-Hearing Br. at 39-40 (stating that the

accumulations “could have occurred in a ‘couple of hours’ considering the amount of coal

running over the belt during the time after the pre-shift/on-shift and [the inspector] issuing his

order and citation.”); see also id. at 41 (“[The accumulations] developed within the approximate

3-hour span between when the pre-shift/on-shift examination was performed and when the

condition was observed by the MSHA inspector”). 

At oral argument before the Commission, counsel for Twentymile agreed that there

would have been no reason to conduct an on-shift examination during the “graveyard shift” if the

company had not been producing coal on that shift. Oral Arg. Tr. 144 (Commissioner Young:

“[i]f you say it’s an on-shift examination, there’s no reason to do one unless you’re running coal,

right?” Counsel: “That’s correct”).

36 FMSHRC Page 2022
Significantly, Matt Winey, the shift foreman, testified that the mine was running two tenhour production shifts per day in August 2009. Tr. 357-59. On a typical shift, the mine

produced about 1,500 tons of coal per hour. Tr. 359. Neither Winey nor any of Twentymile’s

other witnesses suggested that production did not occur during the shift on which the cited onshift examination was made.

Based on the foregoing, we conclude that Twentymile conceded that it produced coal on

the “graveyard shift,” the shift for which the cited examination was performed. Therefore,

according to the safety standard in 30 C.F.R. § 75.362(b), it was required to perform an adequate

on-shift examination. 

As noted above, however, Twentymile argued that the accumulation might have occurred

after the on-shift report was prepared. Obviously, the Judge made no finding regarding that

argument. Therefore, we remand this matter to the Judge for a determination of whether the

cited examinations of August 10 and 11 were inadequate as alleged, and, if so, whether the

violation was significant and substantial and the result of an unwarrantable failure by the

operator.

II.

The Inadequate Insulation Citation (Citation No. 8457448)

A. Factual and Procedural Background

On June 23, 2009, MSHA Inspector Charles Bordea arrived at the Foidel Creek mine to

conduct a regular inspection. Gov. Ex. 41 at 1-2. He traveled underground to Load Center 

No. 29, where he observed a communication cable contacting energized high voltage cables. Id.

at 3. The communication cable consisted of two twisted pair wires, a ground wire, and shielding,

all of which were wrapped in an outer jacket. Id. The power cables consisted of three power

conductors, a ground monitor cable, and at least two ground wires, all of which were wrapped in

an outer jacket. Id. 

The mandatory safety standard in 30 C.F.R. § 75.516-2(c) requires that “[a]dditional

insulation shall be provided for communication circuits at points where they pass over or under

any power conductor.” Inspector Bordea issued Citation No. 8457448 to Twentymile and

alleged that its failure to install an additional wrap of insulation at the point where the

communication cable contacted the power cable constituted a non-significant and substantial

violation of the standard. Gov. Ex. 33. Inspector Bordea determined that the violation was the

result of moderate negligence on the part of the operator. Id.

Twentymile contested the citation, arguing that it did not violate the standard because it

provided a communication cable that had been insulated, shielded, and jacketed by the

manufacturer. Twentymile’s Statement at 3. 

In a previous Commission proceeding, Twentymile made the same argument to

Administrative Law Judge Richard Manning when it contested two citations issued for violations

36 FMSHRC Page 2023
4

 These issues are explored more completely in the simultaneously issued decision. See

36 FMSHRC __, Docket Nos. WEST 2009-241 et al. (Aug. 26, 2014). 

of section 75.516-2(c). 33 FMSHRC 1885, 1945 (Aug. 2011) (ALJ). Judge Manning concluded

that the meaning of the language in the safety standard was clear, i.e., mine operators are

required to manually install additional insulation at the points where communication circuits pass

power conductors no matter how well insulated the circuits may be. Id. Twentymile filed a

petition for discretionary review of Judge Manning’s decision with the Commission, which we

granted.

On August 9, 2012, Judge David Barbour issued his decision on Citation No. 8457448. 

Judge Barbour adopted Judge Manning’s analysis, concluding that the standard clearly required

that an operator must install insulation on the cable in addition to the insulation that is provided

by the manufacturer. 34 FMSHRC at 2144. He concluded that “because Twentymile did not

add any insulation to the cited communication cable [at the point of contact] . . . the company

violated the standard.” Id. The Judge found that the violation was the result of low negligence

on the part of the operator and assessed a civil penalty of $100. Id. at 2184.

B. Analysis

Today, in a separate decision, the Commission is reversing Judge Manning’s August

2011 decision on the requirements of section 75.516-2(c). 36 FMSHRC __, Docket Nos. WEST

2009-241 et al. (Aug. 26, 2014). In our concurrently issued decision, we conclude that the

language of the safety standard in section 75.516-2(c) is silent or ambiguous with respect to how

compliance with its requirements is to be achieved. Slip op. at 3. Specifically, we conclude that

the phrase “shall be provided” does not plainly mean that the operator itself must install the

“additional insulation.” Id. at 3-4. In fact, we note that the phrase “shall be provided” is used

elsewhere in the Secretary’s regulations to describe equipment that is commonly provided by a

manufacturer. Id. at 3 (see, e.g., 30 C.F.R. § 56.14131 (“Seat belts shall be provided and worn in

haulage trucks”)). We further conclude that the Secretary’s proffered interpretation – that the

additional insulation must be manually installed over the manufacturers’ cables regardless of the

amount of pre-existing insulation – was not reasonable and thus should not be accorded

deference.4 Id. at 4-5. 

The Commission holds that the safety standard in section 75.516-2(c) simply requires the

presence of “additional insulation” at the points where the communication circuits pass over or

under power conductors. Id. at 5. The insulation at those points must be greater than the

insulation requirements of section 75.516-2(b), that is, the insulation must be at least as great as

the dielectric strength of the voltage of the circuit. 30 C.F.R. §§ 75.516-2(b), 75.517-1.

The parties agree that the communication cable cited in Citation No. 8457448 is the same

communication cable that was cited by the Secretary in the case before Judge Manning. 

Secretary’s Statement at 1; Twentymile’s Statement at 1. The communication cable consists of

36 FMSHRC Page 2024
copper conductors that were covered in a layer of insulation, surrounded by foil shielding, and

wrapped in a PVC jacket. Slip op. at 2 (citing 33 FMSHRC at 1941-43); see also Gov. Ex. 41 

at 3. 

The Secretary has not demonstrated that the insulation provided was less than the

dielectric strength of the voltage of the circuit. Accordingly, the Judge’s decision with respect to

Citation No. 8457448 is reversed and the citation is vacated. 

III.

Conclusion

We conclude that the Judge’s decision regarding Order No. 8460435 is not supported by

substantial evidence in the record. Therefore, the Judge’s decision is vacated and remanded for

analysis of whether the cited examinations were inadequate as alleged, and if so, whether the

violation was significant and substantial and the result of an unwarrantable failure.

We further conclude that the Judge erred in his interpretation of the safety standard in

section 75.516-2(c). Because the record lacks evidence that Twentymile violated the standard,

the Judge’s decision with respect to Citation No. 8457448 is reversed and the citation is vacated.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 2025
Distribution:

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1500

401 Liberty Avenue

Pittsburgh, PA 15222

rhmoore@jacksonkelly.com

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Department of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Garris.Melanie@dol.gov

Jerald S. Feingold, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Feingold.jerold@dol.gov

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Shumann.walter@dol.gov

Administrative Law Judge Richard W. Manning

Federal Mine Safety and Health Review Commission

Office of Administrative Law Judges

721 19th Street, Suite 443

Denver, CO 80202-5268

36 FMSHRC Page 2026
1

 The relevant docket numbers involved in this proceeding are listed in Appendix A,

attached to this decision.

2

 Section 104(e) of the Mine Act, 30 U.S.C. § 814(e), provides:

(1) If an operator has a pattern of violations of mandatory

health or safety standards in the coal or other mine which are of

such nature as could have significantly and substantially

contributed to the cause and effect of coal or other mine health or

safety hazards, he shall be given written notice that such pattern

exists. If, upon any inspection within 90 days after the issuance of

such notice, an authorized representative of the Secretary finds any

violation of a mandatory health or safety standard which could

significantly and substantially contribute to the cause and effect of

a coal or other mine safety or health hazard, the authorized

representative shall issue an order requiring the operator to cause

(continued...)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

August 28, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 :

v. : Docket Nos. WEVA 2014-82-R, et al.1

 :

 :

BRODY MINING, LLC :

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

DECISION

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

These consolidated contest proceedings, which arise under the Federal Mine Safety and

Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), are before us on

interlocutory review. At issue in this case of first impression is the validity of a pattern of

violations rule promulgated by the Department of Labor’s Mine Safety and Health

Administration (“MSHA”) at 30 C.F.R. Part 104, which implements section 104(e) of the Mine

Act, 30 U.S.C. § 814(e).2 We conclude that the rule is facially valid, and that it was not applied

36 FMSHRC Page 2027
2

(...continued)

all persons in the area affected by such violation, except those

persons referred to in subsection (c), to be withdrawn from, and to

be prohibited from entering, such area until an authorized

representative of the Secretary determines that such violation has

been abated.

(2) If a withdrawal order with respect to any area in a coal

or other mine has been issued pursuant to paragraph (1), a

withdrawal order shall be issued by an authorized representative of

the Secretary who finds upon any subsequent inspection the

existence in such mine of any violation of a mandatory health or

safety standard which could significantly and substantially

contribute to the cause and effect of a coal or other mine health or

safety hazard. The withdrawal order shall remain in effect until an

authorized representative of the Secretary determines that such

violation has been abated.

(3) If, upon an inspection of the entire coal or other mine,

an authorized representative of the Secretary finds no violations of

mandatory health or safety standards that could significantly and

substantially contribute to the cause and effect of a coal or other

mine health and safety hazard, the pattern of violations that

resulted in the issuance of a notice under paragraph (1) shall be

deemed to be terminated and the provisions of paragraphs (1) and

(2) shall no longer apply. However, if as a result of subsequent

violations, the operator reestablishes a pattern of violations,

paragraphs (1) and (2) shall again be applicable to such operator.

(4) The Secretary shall make such rules as he deems

necessary to establish criteria for determining when a pattern of

violations of mandatory health or safety standards exists.

in an impermissibly retroactive manner to Brody Mining, LLC. For the reasons discussed below,

we affirm the Chief Administrative Law Judge’s interlocutory order upholding the rule, and

remand the case for further proceedings. 36 FMSHRC 284 (Jan. 2014) (ALJ).

I.

Statutory and Regulatory Background

Section 104(e) sets forth provisions regarding the issuance and termination of a pattern of

violations (“POV”) notice. Section 104(e)(1) provides that if an operator has a pattern of

violations of mandatory health or safety standards which are of such nature as could significantly

and substantially contribute to the cause and effect of health or safety hazards, it shall be given

written notice that such a pattern exists. If, within 90 days following issuance of the POV notice,

36 FMSHRC Page 2028
3

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

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

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

an inspector cites the operator for a significant and substantial (“S&S”) violation,3 then MSHA

may issue a withdrawal order under section 104(e) of the Act. 30 U.S.C. § 814(e)(1). 

The operator will thereafter be subject to additional withdrawal orders for each new S&S

violation subsequently discovered until a complete inspection of the mine has revealed no further

S&S violations. 30 U.S.C. § 814(e)(2). These withdrawal orders “cause all persons in the area

affected by such violation . . . to be withdrawn from, and to be prohibited from entering, such

area until an authorized representative of the Secretary determines that such violation has been

abated.” 30 U.S.C. § 814(e)(1). 

In enacting section 104(e), Congress explicitly recognized that the provision was

necessary to “provide an effective enforcement tool to protect miners when the operator

demonstrates [its] disregard for the health and safety of miners through an established pattern of

violations.” S. Rep. No. 95-181, at 32 (1977), reprinted in Senate Subcomm. on Labor, Comm.

on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977 (Legis.

Hist.), at 620 (1978). Congress explained that MSHA’s then-existing enforcement scheme was

unable to address the problem of mines with an inspection history of recurrent violations, and

that some of the recurrent violations were tragically related to mining disasters:

The need for such a provision was forcefully demonstrated during

the investigation . . . of the Scotia mine disaster which occurred in

March 1976 in Eastern Kentucky. That investigation showed that

the Scotia mine, as well as other mines, had an inspection history

of recurrent violations, some of which were tragically related to

the disasters, which the existing enforcement scheme was unable

to address. The Committee’s intention is to provide an effective

enforcement tool to protect miners when the operator demonstrates

his disregard for the health and safety of miners through an

established pattern of violations.

Id. Congress stated its view that a POV notice indicates “to both the mine operator and the

Secretary that there exists at that mine a serious safety and health management problem, one

which permits continued violations of safety and health standards.” Id. at 621.

Despite its inclusion in the Mine Act from enactment, the pattern of violations sanction

has only recently been employed by the Secretary as an enforcement tool. Regulations

implementing section 104(e) were not promulgated until 1990 (“the 1990 rule”). See 55 Fed.

Reg. 31,128 (July 31, 1990). Under the 1990 rule, MSHA engaged in an annual initial screening

process, which included reviewing information regarding a “mine’s history of [S&S] violations.” 

30 C.F.R. § 104.2(a)(1) (1990). Section 104.3 identified information that MSHA used to

36 FMSHRC Page 2029
4

 We take judicial notice of the OIG Report, which is referred to in the preamble of the

final POV Rule (78 Fed. Reg. at 5058). See Sec’y of Labor on behalf of Acton v. Jim Walter

Res., Inc., 7 FMSHRC 1348, 1355 n.7 (Sept. 1985) (noting that the Commission may take

judicial notice of public documents of MSHA). 

identify mines with a “potential” POV (“PPOV”). Section 104.3(b) provided that only citations

and orders that had become final orders were used to identify a mine with a PPOV. 30 C.F.R. 

§ 104.3(b) (1990). When notified of a PPOV, an operator had an opportunity to engage in

remedial measures, including the submission of a corrective action program. 30 C.F.R. 

§ 104.4(a) (1990). If the MSHA District Manager continued to believe that a pattern of

violations existed at the mine, he submitted a report to the appropriate MSHA Administrator,

who issued a decision as to whether the mine was to be issued a POV notice. 30 C.F.R. 

§ 104.4(b) (1990). The POV notice was terminated when an inspection of the entire mine

revealed no further S&S violations or if no section 104(e)(1) withdrawal order was issued within

90 days of the POV notice. 30 C.F.R. § 104.5 (1990).

It was not until after the disasters at the Sago, Darby, and Aracoma mines in early 2006

that MSHA developed a Pattern of Violations Screening Criteria and Scoring Model, which was

initiated in mid-2007. 76 Fed. Reg. 5719, 5720 (Feb. 2, 2011). The screening criteria and

procedures were later revised in 2010. Id. MSHA used the screening criteria and scoring model

to generate lists of mines with a PPOV. Id.

In 2010, the U.S. Department of Labor’s Office of the Inspector General (“OIG”) audited

MSHA’s POV program. See 78 Fed. Reg. 5056, 5058 (Jan. 23, 2013). On September 29, 2010,

the OIG published its audit report entitled, “In 32 Years MSHA Has Never Successfully

Exercised its Pattern of Violations Authority.” Id. The OIG Report stated that during the 32

years since passage of the Mine Act, MSHA had only once issued a POV notice to an operator. 

Rep. No. 05-10-005-06-001 at 2.4

 In that one instance, the Commission subsequently modified

some of the citations and orders on which the POV notice was based, and, as a result, MSHA did

not enforce the order. Id. at 4. The report included several recommendations, the first of which

was: “Evaluate the appropriateness of eliminating or modifying limitations in the current

regulations, including the use of only final orders in determining a pattern of violations and the

issuance of a warning notice prior to exercising POV authority.” Id. at 24.

MSHA adopted this recommendation in revisions to the 1990 Rule, which became

effective on March 25, 2013 (“current rule”). 78 Fed. Reg. 5056-74 (Jan. 23, 2013). The current

rule implemented two major changes from the 1990 rule: (1) it eliminated the PPOV notice and

review process; and (2) it eliminated the requirement that MSHA could consider only final

orders in its POV review. Id. at 5056. In addition, section 104.2(a) of the current rule provides

that at least once each year, MSHA will review the compliance and accident, injury and illness

records of mines to determine if any mines meet the POV screening criteria. The review to

36 FMSHRC Page 2030
5

 The eight listed elements include:

(1) Citations for S&S violations;

(2) Orders under section 104(b) of the Mine Act for not abating

S&S violations;

(3) Citations and withdrawal orders under section 104(d) of the

Mine Act, resulting from the mine operator’s unwarrantable failure

to comply;

(4) Imminent danger orders under section 107(a) of the Mine Act;

(5) Orders under section 104(g) of the Mine Act requiring

withdrawal of miners who have not received training and who

MSHA declares to be a hazard to themselves and others;

(6) Enforcement measures, other than section 104(e) of the Mine

Act, that have been applied at the mine;

(7) Other information that demonstrates a serious safety or health

management problem at the mine, such as accident, injury, and

illness records; and

(8) Mitigating circumstances.

30 C.F.R. § 104.2.

identify mines with a pattern of S&S violations will include eight listed elements.5 Section

104.2(b) provides that “MSHA will post the specific pattern criteria on its Web site.” 30 C.F.R. 

§ 104.2(b).

The 2013 POV screening criteria posted on MSHA’s website include two sets of criteria

that are used to perform the review under section 104.2. See App. B. The first set pertains to

numbers and rates of S&S citations and orders (some with considerations of negligence ratings

of high or reckless disregard), rate of issuance of “elevated citations and orders [issued under

sections 104(b); 104(d);104(g); or 107(a) of the Mine Act],” and a comparison of “injury

severity measure” (the number of lost workdays per 200,000 employee-hours). B. Mem.

Supporting Appl. for Temp. Relief, Ex. 10 at 1. The alternative set of criteria sets forth greater

rates of issuance of S&S citations and orders and elevated citations and orders. Id. The criteria

provide that “[m]ines must meet [all] the criteria in either set to be further considered for

exhibiting a pattern of violations.” Id. 

The numerical criteria in the 2013 POV screening criteria are identical to the numerical

screening criteria that were in effect under the 1990 rule in 2012, prior to promulgation of the

current rule. See App. C; S. Mem. Supporting S. Mot. for Partial Summ. Dec. at 5-6 & Ex. 2. 

However, consistent with section 104.3(b) of the prior rule, the 2012 screening criteria, unlike

the 2013 screening criteria, also provided, “For a pattern of violations review, mines identified

during the initial screening must have at least five S&S citations of the same standard that

became final orders of the Commission during the most recent 12 months OR at least two S&S

unwarrantable failure violations that became final orders of the commission during the most

36 FMSHRC Page 2031
recent 12 months.” S. Mem. Supporting Mot. for Partial Summ. Dec., Ex. 2 at 2 (emphasis in the

original); App. C. 

MSHA has available on its website a Monthly Monitoring Tool for Pattern of Violations. 

MSHA’s online Monthly Monitoring Tool provides mine operators with a statement of their

performance with respect to the screening criteria. 78 Fed. Reg. at 5057, 5059.

MSHA also provides a POV Procedures Summary on its website. See B. Mem.

Supporting Appl. for Temp. Relief, Ex. 11. Regarding the issuance of the POV notice, the

summary provides in part that at least once each year, MSHA will review the violation and injury

history of each mine to identify those that are exhibiting a pattern of violations. Id. at 1. The

MSHA District Manager of a mine meeting the POV screening criteria performs a review to

determine whether mitigating circumstances exist. Id. An MSHA POV panel subsequently

reviews information provided by the District Manager, obtains any additional necessary

information, and makes a recommendation regarding whether to postpone or not issue the POV

notice. Id. The panel provides a report to the appropriate MSHA Administrator, who determines

whether to issue the POV notice. Id. If so, the District Manager issues the POV notice. Id.

II.

Factual and Procedural Background

These consolidated proceedings arose from MSHA’s application of the POV procedures

to Brody’s Mine No. 1. On October 24, 2013, MSHA issued a POV notice to Brody. MSHA

made its POV determination based on a 12-month screening period extending from September 1,

2012, through August 31, 2013. S. Mem. Supporting Opp’n to Appl. for Temp. Relief, Ex. A at

9.

The POV notice issued to Brody states:

Pursuant to Section 104(e)(1) of the Federal Mine Safety and

Health Act of 1977 (Mine Act), you are hereby notified that a

pattern of violations exists at the Brody Mine No. 1 (ID 46-09086). 

A review of the S&S violations cited at the mine demonstrates a

pattern of violations. As illustrative of this pattern of violations,

the following groups of violations are representative of violations

which are of such nature as could have significantly and

substantially contributed to the cause and effect of coal or other

mine health or safety hazards[.]

Notice No. 7219154. The notice lists 54 citations and orders issued between October 9, 2012

and October 8, 2013, in groups regarding conditions and or practices that contribute to: 

(1) ventilation and/or methane hazards; (2) emergency preparedness and escapeway hazards; (3)

roof and rib hazards; and (4) inadequate examinations. The notice further states that, “These

groups of violations, taken alone or together, constitute a pattern of violations . . . .” Id. The

citations and orders listed in the POV notice were either contested or in the penalty assessment

36 FMSHRC Page 2032
process, but no citations or orders had become final Commission orders. 36 FMSHRC 284, 293

(Jan. 2014) (ALJ). 

On October 30, 2013, Brody notified the Secretary that it was contesting the POV notice,

and the contest was docketed as WEVA 2014-81-R. Chief Administrative Law Judge Lesnick

dismissed the docket, holding that no provision of the Mine Act or the Commission’s Procedural

Rules authorized him to adjudicate a “notice.” 36 FMSHRC 284, 287 (Jan. 2014) (ALJ). Brody

has not sought review of the Judge’s dismissal of this contest.

After the issuance of the notice, MSHA issued four section 104(e) withdrawal orders to

Brody, and Brody contested those orders. B. Mem. Supporting Appl. for Temp. Relief at 8. 

Since that time, MSHA has issued numerous additional section 104(e) withdrawal orders, which

Brody has also contested.

On November 4, 2013, Brody filed an application seeking temporary relief from the POV

notice and withdrawal orders. Appl. for Temp. Relief at 3 ¶ 7. Brody’s application was denied

by an Administrative Law Judge because Brody failed to establish that granting temporary relief

would not adversely affect the health and safety of miners. Unpublished Order dated Nov. 21,

2013, at 4-5. Brody has not sought review of that decision. See S. Br. at 5 n.7. 

Brody subsequently filed a Motion for Summary Decision, and the Secretary filed a

Motion for Partial Summary Decision and Opposition to Brody’s motion. Among other issues,

the parties disputed whether in the current rule MSHA properly eliminated: (1) the 1990 rule’s

PPOV notice and review process and (2) the requirement that MSHA could only consider final

orders in its POV review.

On January 30, 2014, the Chief Judge issued an order denying Brody’s motion and

granting the Secretary’s motion. 36 FMSHRC at 286. In granting the Secretary’s motion, the

Judge upheld the facial validity of the current rule against three lines of attack made by the

operator. First, the Judge concluded that nothing in the Mine Act requires MSHA to rely on

issuances that have become final orders in determining whether a mine operator should be

considered for further evaluation and potentially issued a POV notice. Id. at 298-301. In so

holding, he concluded that the term “violation,” as used in section 104(e) of the Act, is

ambiguous, and that the Secretary’s interpretation of the term was reasonable and entitled to

deference. Id. at 301. 

Second, the Judge concluded that the Secretary’s promulgation of the POV rule was not

arbitrary, capricious, or an abuse of discretion in violation of section 706(2)(A) of the

Administrative Procedures Act (“APA”). Id. at 301-04. 

Third, the Judge concluded that the POV rule does not violate the Due Process Clause of

the Fifth Amendment. Id. at 304-08. The Judge reasoned that the government’s significant

interest in the timely protection of public health and safety, particularly in light of an operator’s

opportunity for expedited post-deprivation review, justified the deprivation of the property

interest associated with uninterrupted mine production, which Brody had “overstated.” Id. at

305.

36 FMSHRC Page 2033
6

 Section 101(d), 30 U.S.C. § 811(d), provides in part:

Any person who may be adversely affected by a mandatory health

or safety standard promulgated under this section may, at any time

prior to the sixtieth day after such standard is promulgated, file a

petition challenging the validity of such mandatory standard with

the United States Court of Appeals for the District of Columbia

Circuit or the circuit wherein such person resides or has his

principal place of business, for a judicial review of such 

standard . . . . The procedures of this subsection shall be the

exclusive means of challenging the validity of a mandatory health

or safety standard.

7

 The Court of Appeals for the Sixth Circuit recently held that the POV rule is not a

mandatory health or safety standard and that it lacks jurisdiction to consider an initial challenge

to the validity of the rule. Nat’l Min. Ass’n v. Sec’y of Labor, Nos. 13-3324 & 13-3325. 2014

WL 4067861 (6th Cir. Aug. 19, 2014).

The Judge further concluded that the POV screening criteria are a valid statement of

agency policy, and, as such, were not subject to notice-and-comment rulemaking requirements. 

Id. at 308-12. He reasoned that the criteria were not legislative rules because they did not bind

or circumscribe MSHA’s discretion in determining whether a POV notice should be issued. Id.

at 311-12. Finally, the Judge rejected Brody’s argument that MSHA applied the POV rule

retroactively. Id. at 312-15. 

On the same day that he issued his order, the Judge certified the order for interlocutory

review. We granted interlocutory review of the following questions: (1) whether the POV rule is

valid; (2) whether MSHA’s screening criteria are invalid because notice-and-comment

rulemaking was required; and (3) whether MSHA impermissibly applied the POV rule

retroactively. We also instructed the parties to address whether the Commission has jurisdiction

to rule upon the validity of the current rule.

III.

Disposition

A. The Commission’s jurisdiction to rule on the validity of the current rule

Section 101(d) of the Mine Act vests exclusive jurisdiction over challenges to the validity

of mandatory safety and health standards promulgated by the Secretary with the U.S. Courts of

Appeals.6 Thus, if the POV rule were a “mandatory health or safety standard,” the Commission

would lack jurisdiction to consider its validity.7

Section 3(l) of the Mine Act defines a “mandatory . . . safety standard” as “the interim

mandatory health or safety standards established by subchapters II and III of this chapter, and the

36 FMSHRC Page 2034
8

 30 U.S.C. § 957 provides, “The Secretary . . . [is] authorized to issue such regulations

as [he] deems appropriate to carry out [a] provision of this chapter.”

standards promulgated pursuant to subchapter I of this chapter.” 30 U.S.C. § 802(l). 

Subchapters II and III set forth interim mandatory standards, while Subchapter I contains

sections 101 through 116 of the Mine Act. Section 101 provides the procedures for the

development, promulgation and revision of mandatory safety and health standards by the

Secretary. Section 101(d) explicitly confers exclusive jurisdiction in the U.S. Courts of Appeals

of challenges regarding “a mandatory health or safety standard promulgated under this section.” 

30 U.S.C. 

§ 811(d).

The Commission and courts have generally distinguished mandatory health or safety

standards promulgated under section 101 from regulations promulgated under other sections of

the Mine Act. Drummond Co., 14 FMSHRC 661, 673 (May 1992); UMWA v. Dole, 870 F.2d

662, 668 (D.C. Cir. 1989) (“Regulations promulgated pursuant to § 508 alone do not establish

‘mandatory health or safety standards’ for the purposes of § 101(a)(9)’s no-less protection

rule.”); see also Cyprus Emerald Res. Corp. v. FMSHRC, 195 F.3d 42, 43-44 & n.2 (D.C. Cir.

1999) (holding that a violation of 30 C.F.R. § 50.11(b) could not be designated as S&S because

the regulation was promulgated under section 508 rather than section 101). Cf. Wolf Run Mining

Co. v. FMSHRC, 659 F.3d 1197, 1201-02 (D.C. Cir. 2011) (holding that a violation of a

safeguard notice could be S&S because section 314(b) constitutes an interim mandatory standard

and falls within section 3(l)’s definition). 

The POV rule was not promulgated pursuant to section 101 of the Mine Act. Rather, the

POV rule was promulgated pursuant to section 104(e)(4) and section 508, 30 U.S.C. § 957,8

 of

the Mine Act. See 78 Fed. Reg. at 5073. Therefore, we conclude that the POV rule is not a

“mandatory safety and health standard” subject to exclusive court review. 

We further conclude that we have the authority to consider the validity of the POV rule. 

The Commission is authorized pursuant to section 105(d) of the Mine Act, 30 U.S.C. § 815(d), to

adjudicate contested orders, such as the section 104(e) withdrawal orders at issue in these

proceedings. In exercising our jurisdiction, we may address Brody’s challenge to the validity of

the POV rule underlying the withdrawal orders in order to fully dispose of the case. See

Drummond, 14 FMSHRC at 674 (“[W]here the statute creates Commission jurisdiction, it

endows the Commission with a plenary range of adjudicatory powers to consider issues . . . to

dispose fully of cases committed to Commission jurisdiction.”).

B. Facial validity of the current rule

Section 104(e)(4) of the Mine Act grants the Secretary the authority to “make such rules

as he deems necessary to establish criteria for determining when a pattern of violations of

mandatory health or safety standards exists.” 30 U.S.C. § 814(e)(4). In the rules under review,

the Secretary explains that he will determine whether a pattern exists by considering cited

violations designated as S&S, regardless of whether a citation has been contested by the

36 FMSHRC Page 2035
operator. Brody challenges the Secretary’s reliance on these “non-final citations” which,

according to Brody, are merely unproven assertions or allegations of a violation.

In considering the validity of the Secretary’s approach, we bear in mind that, in cases

such as this one where “there is an express delegation of authority to the agency . . . [s]uch

legislative regulations are given controlling weight unless they are arbitrary, capricious, or

manifestly contrary to the statute.” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 843-44 (1984). 

 Brody submits that applying that standard here would require us to invalidate the

current rule. It argues that, by its ordinary usage, the term “violations” in section 104(e) must be

restricted to final orders, that is, violations cited by MSHA that were either unchallenged by the

operator or upheld by the Commission. Had Congress intended POV sanctions to apply to

“patterns of citations and orders,” Brody contends that it would have said so. Furthermore,

Brody notes that the Secretary, when considering an operator’s “history of previous violations”

for purposes of assessing a penalty under section 110(a), includes only those violations for which

a penalty has been paid or which have been upheld in final orders of the Commission. B. Br. at

11. Finally, Brody relies on MSHA’s request to Congress to amend the Mine Act to permit it to

issue POV sanctions based on non-final citations, a request, which it argues would have been

unnecessary if such action was already permissible. 

Where the plain meaning of statutory language indicates that Congress has directly

spoken to the precise question at issue, “‘that intention is the law and must be given effect’ in the

regulation.” Coal Employment Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989) (quoting

Chevron, 467 U.S. at 843, n.9) (other citations omitted). However, the Mine Act does not define

“violation” or “pattern of violations.” As such, Congress has not clearly addressed whether the 

term “violations” in section 104(e) refers only to final orders, but has instead expressly delegated

to the Secretary responsibility for determining when a pattern of violations exists. 

1. Meaning of the term “violations”

When statutory language is silent or ambiguous, we generally defer to an interpretation

proffered by the Secretary “so long as it is reasonable, consistent with the statutory purpose, and

not in conflict with the statute’s plain language.” Coal Employment Project, 889 F.2d at 1131

(citations omitted); Chevron, 467 U.S. at 843 n.9. Thus, any ambiguity arising from the Act’s

omission of a definition for “violations” must be resolved in favor of a reasonable construction

adopted by the Secretary.

 As the Secretary points out, various provisions of the Mine Act allow enforcement

actions based on the occurrence of a “violation” where the term can only reasonably refer to

conditions that, in the inspector’s determination, amount to a violation and warrant a citation,

whether or not that determination has been subjected to review by the Commission. See, e.g., 30

U.S.C. § 814(a) (providing that an operator must abate a “violation” within the time fixed in the

citation); 30 U.S.C. § 814(b) (stating that an operator who fails to abate a “violation” within the

time fixed in the citation for abatement can be issued an order requiring the withdrawal of miners

from the affected area of the mine until the violation is abated). The ability of MSHA to compel

36 FMSHRC Page 2036
9

 The Senate report states that the section 104(e) “sequence parallels the current

unwarrantable failure sequence of the Coal Act, and the unwarranted failure sequence of Section

10[4(d)] of the bill.” Legis. Hist. at 621. 

immediate compliance and to issue such orders does not depend on the finality of MSHA’s

determination that a violation exists.

The legislative history of the Mine Act indicates that the POV provisions of section

104(e) were intended to parallel the unwarrantable failure provisions contained in section

104(d).9

 That provision empowers an inspector to issue a withdrawal order if he or she

determines that a “violation” caused by an operator’s unwarrantable failure to comply with a

cited standard has occurred within ninety days of a prior violation determined to be both S&S

and unwarrantable. 30 U.S.C. § 814(d)(1). The predicate “violation” may occur during the same

inspection as the “violation” that is the basis for the withdrawal order. In such case, neither the

predicate citation nor the subsequent withdrawal order would be based on determinations of

violations that had been subjected to additional review.

Section 104(e), like subsections 104(a), (b), and (d), provides enforcement authority to

ensure compliance with the Act. It is intended to be applied to repeat violators who have been

undeterred by MSHA’s other enforcement tools. It would indeed be anomalous if withdrawal

orders directed to repeated serious violations were restricted to violations deemed “final” while

other section 104 withdrawal orders need only be based on prior cited conditions.

We further observe that Congress recognized that the POV sanction was necessary to

address mines with an “inspection history of recurrent violations.” Legis Hist. at 620 (emphasis

added). The use of the phrase “inspection history” demonstrates Congress’ expectation that

POV determinations would be based on violations found during inspections regardless of

whether such violations had achieved a final status.

The legislative history supporting the Secretary’s interpretation may be traced back to the

Mine Act’s antecedents, which clearly evince an intent to effectively address recurrent

violations. The issuance of a section 104(b) withdrawal order is derived from section 203 of the

Federal Coal Mine Safety Act of 1952, which authorized a representative of the Bureau of Mines

to issue a withdrawal order if an operator had failed to abate a non-imminent condition and an

extension of abatement time was not permitted. Pub. L. No. 82-552, 66 Stat. 692, 694-95. 

Section 203 of the 1952 Act was amended in 1966 to add a provision that is the basis for section

104(d) withdrawal orders. Pub. L. No. 89-376, 80 Stat. 85. The legislative history of the Federal

Coal Mine Safety Act Amendments of 1966 reveals that the purpose of the revision was to

provide inspectors “with increased powers to deal with recurrent or repeated violations.” H.

Rep. No. 

89-181, at 7 (1965). 

When these provisions were “unable to address” the problem of recurrent violations,

Congress developed the POV sanction. Legis. Hist. at 620. Throughout this development,

36 FMSHRC Page 2037
Congress provided the enforcement tool of a withdrawal order without requiring finality for the

violation underlying that order. Thus, the Secretary’s interpretation of the term “violation” is

consistent with the language, structure and history of the Act.

Brody notes that section 110(i) of the Act – which sets forth criteria for the assessment of

civil penalties – includes “the operator’s history of previous violations” as one of the criteria to

be considered. 30 U.S.C. § 820(i). Brody further notes that the Secretary’s regulations

implementing this provision interprets the language to include “only assessed violations that

have been paid or finally adjudicated, or have become final orders of the Commission.” 30

C.F.R. § 100.3(c). Brody contends that this definition of “previous violations” is necessarily

binding on the Secretary in the context of section 104(e). B. Br. at 11. However, the statutory

language of section 110(i) differs from the language in section 104(e). Section 110(i) uses the

phrase “history of previous violations,” which suggests past actions, while section 104(e)

addresses an operator that “has a pattern of violations,” which, in addition to past actions,

suggests present and continuing actions. 30 U.S.C. § 814(e)(1) (emphasis added). The use of

the word “violations” in section 104(e) is much more closely related to its use in sections 104(a),

(b) and (d) where, unquestionably, “violations” does not require the administrative finality of the

“previous violations” referred to in section 110(i). The fact that the Secretary made a policy

choice in his penalty regulations to define “history of previous violations” to encompass only

paid violations and final orders does not change our view that the phrase “pattern of violations”

in section 104(e) may permissibly be interpreted to encompass non-final orders. 

Brody also asserts that Congress and MSHA itself have agreed that the phrase “pattern of

violations” in section 104(e) is limited to violations that have become final after review by the

Commission. In support of this argument, Brody describes various bills relating to pattern of

violations that have been proposed in Congress, and cites testimony before Congress by

Assistant Secretary for Mine Safety and Health Joseph A. Main. According to Brody, Assistant

Secretary Main stated that MSHA’s POV authority was too limited in that MSHA “did not have

the authority to issue a POV notice based on non-final citations and orders.” B. Br. at 13-14. 

This argument places undue weight on Congressional inaction, and grossly mischaracterizes

Assistant Secretary Main’s testimony. The fact that Congress did not amend section 104(e) does

not indicate Congressional intent. As the Supreme Court stated in Cent. Bank of Denver v. First

Interstate Bank of Denver, 511 U.S. 164, 187 (1994), “Congressional inaction lacks persuasive

significance because several equally tenable inferences may be drawn from such inaction.” As

for Assistant Secretary Main’s testimony, the statement relied on by Brody was a statement in

which the Assistant Secretary said that MSHA had been working on regulations to change the

POV system – the regulations at issue in this case – since his confirmation, and that the proposed

legislation “will expedite that needed reform.” House Comm.on Education and Labor, Hearing

on H.R. 5663, Miner Safety and Health Act of 2010, July 13, 2010, at 13, reprinted in Jt. App.,

Brody Ex. 7, at 218. This was in no way an admission that MSHA lacked authority to make this

change itself through notice-and-comment rulemaking, as Brody alleges. 

2. Determination of a “pattern of violations”

Brody next asserts that the Secretary’s promulgation of the POV regulations was

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in

36 FMSHRC Page 2038
10 Brody also alleged that 33% of S&S violations in 2011 were vacated, dismissed or

modified. B. Br. at 16. MSHA said that it could not confirm this claim. S. Br. at 13, n.13. In

any event, these percentages only relate to S&S citations and orders which were contested. If

one were to consider the universe of S&S citations and orders that are issued – those contested

and those not contested – the percentage of S&S citations and orders that were later changed

would be lower. 

violation of section 706(2)(A) of the APA, 5 U.S.C. § 706(2)(A). Brody argues that, in adopting

a rule that bases a pattern determination on non-final S&S citations, MSHA failed to adequately

consider that S&S determinations are overturned at a significant rate upon review. The operator

also contends that the agency failed to consider the increased safety and compliance that had

been afforded by the prior PPOV process.

In determining whether the Secretary acted arbitrarily and capriciously in issuing the

current rule, we must consider whether the agency examined the relevant data and articulated a

satisfactory explanation for its action, including a rational connection between the facts found

and the choices made. Motor Vehicle Mfrs. Ass’n v. State Farm Automobile Ins. Co., 463 U.S.

29, 43 (1983). The Supreme Court has stated that an agency rule is 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 [possibly] be ascribed to a difference in view or the product of

agency expertise.

Id.

Brody’s argument is unpersuasive. MSHA expressly considered evidence that S&S

citations and orders may be subsequently changed to delete their S&S designations. 76 Fed. Reg.

5719, 5722 (Feb. 2, 2011). While the parties dispute the relevant figure regarding the rate at

which S&S designations are altered in adjudication, they appear to agree that approximately 19%

of contested S&S citations were vacated, dismissed, or modified to non-S&S in 2009-2010. See

B. Br. at 16 (“In fiscal 2009 and 2010, nearly 20% of contested S&S violations were vacated or

modified to non-S&S.”); S. Br. at 13 n.13 (“MSHA represents that the 2009-2010 data show that

just under 19% of contested S&S citations were vacated, dismissed, or modified to non-S&S.”).10

Even assuming that approximately 19% of contested S&S citations were vacated,

dismissed, or modified to non-S&S in 2009-2010, the fact remains that more than 80% of S&S

designations remained unchanged after litigation. In this case, MSHA relies on 54 alleged S&S

violations in four different categories. If 20%, or even 33%, of those citations and orders lose

their S&S designation after litigation, it would still leave a significant number of S&S violations

on which a pattern of violations could be found. We are thus satisfied that MSHA did not

“entirely fail[] to consider an important aspect of the problem,” and we find no abuse in the

36 FMSHRC Page 2039
11 Commissioners Young and Cohen believe that this deterioration is dramatically

illustrated by the history of the Upper Big Branch Mine before the April 5, 2010 explosion, a

history that exemplifies the Secretary’s contention that the short-term improvements tolerated by

the PPOV process were ineffective in protecting miners from routine exposure to deadly

hazards. As Brody’s counsel acknowledged at the oral argument, in 2007 MSHA put Upper Big

(continued...)

Agency’s decision to rely on non-final issuances even though some S&S designations may later

be changed in adjudication. Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. at 43. 

Moreover, MSHA extensively addressed its decision to eliminate the final order

requirement in the current rule’s preamble, setting forth relevant data and articulating a

satisfactory reason for its action. 78 Fed. Reg. at 5059-61. MSHA explained that the final order

requirement had proven to be an impediment in MSHA’s use of section 104(e) as contemplated

by Congress. Id. at 5059. Because of delays that occur when citations and orders are litigated

before the Commission, by the time finality is reached, a passage of months or years may have

occurred, and conditions at the mine may no longer reflect the same conditions that existed when

a hazard was originally identified and cited. Id. In sum, the prior rule prevented MSHA from

basing POV determinations on an operator’s recent compliance history. Id. at 5060. 

MSHA’s determination that POV status should be based on an operator’s recent

compliance history is consistent with Congress’ intent that the agency have an effective tool for

dealing with recurrent violations, “some of which were tragically related to . . . disasters,” such

as the one that occurred at the Scotia mine. Legis. Hist. at 620. In the preamble to the current

rule, MSHA observed that, despite having “an egregious record of noncompliance,” the Upper

Big Branch mine avoided being placed on a POV under the prior rule, and that the conditions at

the mine led to a disastrous explosion on April 5, 2010, in which 29 miners were killed and two

were injured. 78 Fed. Reg. at 5057; 36 FMSHRC at 307. 

Turning to Brody’s argument that MSHA failed to consider the safety improvements

afforded by the prior PPOV process, MSHA explicitly acknowledged comments pointing out

that a majority of operators who received the PPOV notice reduced their S&S citations below the

national average for similar mines. 78 Fed. Reg. at 5058. However, MSHA explained that,

“Experience has shown that the existing PPOV provision created the unintended consequence of

encouraging some mine operators to achieve short-term improvements instead of adopting

systemic, long-term improvements in their health and safety management culture.” Id. at 5059.

As noted by commentators on the proposed rule who favored elimination of the PPOV

procedures, the PPOV process contained “the incentive for mine operators to make just enough

short-term improvements to get off the PPOV list, but then backslide and wait for MSHA to

issue the next PPOV notice.” 78 Fed. Reg. at 5058. MSHA statistics established that in the

period June 2007 through September 2009, a large majority of mines which received PPOV

letters significantly reduced their rate of S&S citations and orders. However, compliance at 21%

of the mines which received PPOV letters deteriorated enough over approximately a 24-month

period to warrant a second PPOV letter. Id.11 Moreover, 39% of the mines which received a

36 FMSHRC Page 2040
11(...continued)

Branch on a PPOV because its S&S rate was 11.6 per 100 inspection hours. The mine then got

an improvement plan, and lowered its S&S rate to 5.6. Since this was greater than a 30%

reduction, MSHA withdrew the POV threat. With the threat gone, the mine’s S&S rate went

back up. In the next screening cycle, Upper Big Branch would have received another PPOV

notice except for an MSHA computer error. Oral Arg. Tr. 22-23; U.S. Dep’t of Labor, Internal

Review of MSHA’s Actions at the Upper Big Branch Mine-South, Performance Coal Co., at 56-

57 (Mar. 6, 2012)

(http://www.msha.gov/PerformanceCoal/UBBInternalReview/UBBInternalReviewReport.pdf). Thus,

Upper Big Branch management evaded a POV by bringing down its number of S&S violations

after receiving a PPOV so as to be removed from that status. It then committed an excessive

number of S&S violations again after the POV threat was lifted. If management had the ability

to dramatically reduce the rate of S&S violations, it obviously had the ability to maintain a

reduced level. It chose not to do so, and thus endangered the lives of miners. If the current rule

had been in effect, the Upper Big Branch disaster might have been averted.

12 Brody has not challenged that holding before us. 

PPOV letter experienced an increase in the number of injuries in the second year following

receipt of the PPOV letter compared to the first year. Id. at 5069.

In contrast, MSHA asserts that the changes implemented in the current rule will result in

more sustained improvements. Id. at 5058. Enforcement based on real time status creates an

incentive for operators to use the online Monthly Monitoring Tool, a program that allows them

to continually monitor their compliance to ensure they are not in jeopardy of a POV designation. 

Operators are able to evaluate their performance and respond accordingly, including instituting

voluntary efforts to improve compliance. Id. at 5059, 5061. Such an approach appropriately

places responsibility on operators to ascertain whether they are at risk of a POV designation and,

if so, determine what action they will take to avoid that result. As MSHA found, this

incentivizes long-term compliance rather than short-term avoidance of POV. Id. at 5059.

In sum, we conclude that MSHA’s regulation is not arbitrary, capricious, or an abuse of

discretion, but rather is a reasonable approach consistent with the language and purpose of the

Mine Act.

3. Procedural Due Process requirements

Compliance with the language of section 104(e) does not fully resolve Brody’s challenge

to the current rule. The Judge concluded that it is not until a withdrawal order is issued that an

operator has the opportunity for a hearing in which it may contest the 104(e) order and the

underlying POV notice.12 36 FMSHRC at 305. Brody argues that this process resulting in

interruptions in its mining operations without a prior hearing violates the Fifth Amendment’s

provision that no person shall be deprived of property without due process of law. 

36 FMSHRC Page 2041
As the Supreme Court has held, “some form of hearing is required before an individual is

finally deprived of a property interest.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). The

“fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time in

a meaningful manner.’” Id. (citations omitted).

Adequate post-deprivation procedures are sufficient to satisfy due process in some

circumstances. See Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 599 (1950) (“It is

sufficient, where only property rights are concerned, that there is at some stage an opportunity

for a hearing and a judicial determination.”). In considering whether due process requires an

evidentiary hearing prior to the deprivation of a property interest, even if such a hearing is

provided thereafter, we must balance three 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 requirement would entail. 

Mathews v. Eldridge, 424 U.S. at 335. 

Considering the first factor, we conclude that Brody has a significant property interest in

continuing its mining operations without withdrawing miners. See, e.g., United States v. James

Daniel Good Real Prop., 510 U.S. 43, 49 (1993). The POV sanction is one of the most severe

enforcement tools that MSHA may use, indicating a specific Congressional intent that “the

Secretary use the POV enforcement tool as a last resort when other enforcement 

tools . . . fail to bring an operator into compliance.” 78 Fed. Reg. at 5060.

Thus, we do not agree with the Judge’s conclusion that Brody’s description of the impact

on its property interest is “overstated.” 36 FMSHRC at 305. A withdrawal order may affect

only a part of a mine or a piece of equipment until the S&S violation is abated. However, the

significant impact on Brody’s property interest comes from remaining on the “chain” of

withdrawal liability until the chain is broken by a clean inspection. See generally Naaco Mining

Co., 9 FMSHRC 1541, 1545-46 (Sept. 1987) (recognizing the “threat” of being placed on a

withdrawal order chain as an incentive for operator compliance).

The third factor is also readily apparent. MSHA has a compelling interest in considering

non-final S&S violations in making POV determinations. As the Supreme Court stated in Hodel

v. Va. Surface Mining & Reclamation Ass’n, “[p]rotection of the health and safety of the public

is a paramount governmental interest which justifies summary administrative action.” 452 U.S.

264, 300 (1981). The Court observed that, in fact, “deprivation of property to protect the public

health and safety is ‘[o]ne of the oldest examples’ of permissible summary action.” Id. (citations

omitted).

36 FMSHRC Page 2042
13 Our dissenting colleague has characterized the public interest in safety reflected in the

POV rule as a “spasm of pain and fear” which would “unnecessarily sacrifice basic rights.” Slip

op. at 52 n.16. On the contrary, just as the original POV provision in the Mine Act represented a

rational response to the problem of repeated disregard of the Act’s other enforcement

approaches, the current POV rule may be seen as a rational response to the ineffectiveness of

previous attempts to address the problem. 

MSHA has asserted that the major changes in the current rule were necessary to protect

miner safety and health. The magnitude of the problem addressed by the current rule is fully

described in the OIG Report, which recommended elimination of the final order requirement and

the PPOV process, and was summarized there as follows:

In summary, during the 32 years that MSHA has had Pattern of

Violations authority, it has never successfully used it against a

mine operator. MSHA allowed the rulemaking to stall as

stakeholders argued differing views on implementation. 

Moreover, for many years after the regulations were in place

MSHA relied on District personnel to interpret and carry out those

regulations. Only during the past few years had MSHA used a

standardized method based on quantitative data for identifying

potential POV mines. However, these analyses have proven to be

complex and unreliable. Moving forward, it is imperative for 

MSHA to ensure that POV criteria and procedures are transparent 

and well reasoned.

Rep. No. 05-10-005-06-001, at 14. As discussed above, elimination of the PPOV process was

intended to prompt operators to adopt “systemic, long-term improvements in their health and

safety management culture” rather than just short-term improvements. 78 Fed. Reg. at 5059. 

The elimination of the final order requirement in the current rule was designed to “protect[]

miners working in mines operated by habitual offenders whose chronic S&S violations have not

been deterred by the Secretary’s other enforcement tools.” Id. at 5060. This is a clear and

paramount governmental interest. 

We disagree with our dissenting colleague’s assertion that “the balance between property

rights and an immediate public interest tilts very sharply toward the property rights affected by a

POV Notice” because the POV rule does not address a “situation of urgency.” Slip op. at 56.

Just as the Judge understates the impact of the POV rule on the operator’s property interest, our

dissenting colleague understates the public interest in mine safety embodied in the POV rule.13

As recognized by Congress and evident in disasters since enactment of section 104(e), miners

are placed in a situation of urgency when working in mines where the operator has

“demonstrate[d] [a] disregard for the health and safety of miners through an established pattern

of violations.” Legis. Hist. at 620. Indeed, the legislative history establishes that Congress

36 FMSHRC Page 2043
created the pattern of violations provision because of the explosions at the Scotia Mine which

took the lives of 23 miners and three Federal inspectors:

The need for such a provision was forcefully demonstrated during

the investigation by the Subcommittee on Labor of the Scotia mine

disaster which occurred in March 1976 in Eastern Kentucky. That

investigation showed that the Scotia mine, as well as other mines,

had an inspection history of recurrent violations, some of which

were tragically related to the disasters, which the existing

enforcement scheme was unable to address.

Id. at 592, 620. Thus, we disagree with our dissenting colleague that “section 104(e) is not

intended to deal with present or recently past hazards.” Slip op. at 52. Congress considered an

operator which has “demonstrate[d] [a] disregard for the health and safety of miners” to

constitute a present hazard. Legis. Hist. at 620.

Significantly, as described supra, at 11, Congress intended the pattern of violations

provision to parallel the provision for withdrawal of miners from an area of a mine based on

repeated unwarrantable failure violations contained in section 104(d) of the Mine Act. Id. at

621. Neither section 104(e) nor (d) contains any provision for a hearing or other due process

protection prior to the withdrawal of miners from the area in question. Thus, Brody’s complaint

of due process deprivation is not with the Secretary’s POV rule but rather with Congress’s

enactment of section 104(e) itself.

Our holding thus turns on the second factor, the risk of erroneous deprivation under the

POV rule’s procedures. Weighing this risk with the other two factors, we conclude that the

current rule adequately addresses the potential for erroneous deprivation and satisfies procedural

due process. We reach this conclusion based on the pre-deprivation and post-deprivation

protections afforded operators. See Mackey v. Montrym, 443 U.S. 1, 13 (1979) (“And, when

prompt postdeprivation review is available for correction of administrative error, we have

generally required no more than that the predreprivation procedures used be designed to provide

a reasonably reliable basis for concluding that the facts justifying the official action are as a

reasonable governmental official warrants them to be.”).

Before an operator is formally notified that it is in a pattern of violations, MSHA’s online Monthly Monitoring Tool provides operators with an opportunity to monitor notice of their

status for the possibility that they might be subject to consideration for issuance of a POV notice. 

78 Fed. Reg. at 5061. Operators can present information to support mitigating circumstances to

36 FMSHRC Page 2044
14 MSHA has stated that “[t]he types of mitigating circumstances that could justify a

decision not to issue a POV notice, or to postpone the issuance of a POV notice to reevaluate

conditions in the mine, may include, but are not limited to . . . [a]n approved and implemented

corrective action program . . . accompanied by positive results in reducing S&S violations; a

bona fide change in mine ownership that resulted in demonstrated improvements in compliance;

and MSHA verification that the mine has become inactive.” 78 Fed. Reg. at 5063.

15 As noted in the preamble to the current rule, MSHA has promulgated a Pattern of

Violations (POV) Procedures Summary which is contained in the POV Single Source Page on

MSHA’s website. 78 Fed. Reg. at 5059. The POV Summary describes the procedures to be

followed when an operator satisfies the POV screening criteria:

The Administrators will issue a memorandum to each

District Manager who has mines within the district that meet the

POV screening criteria with instructions for reviewing the

designated mines for mitigating circumstances (see Appendix A –

Mitigating Circumstances). Each memorandum will include the

criteria and detailed data supporting a POV designation. The

District Manager will, by memorandum to the Administrator,

report facts relevant to whether there are mitigating circumstances

that justify postponing or not issuing a POV notification.

. . . . 

An MSHA POV panel will review the information

provided by the District Manager. Within seven calendar days of

receipt of the District Manager’s memorandum, the panel will

review the information, obtain any additional necessary

information, and make a recommendation as to whether any of the

mines meeting the screening criteria for a Pattern of Violations

should be excluded from POV notification or have their POV

notification postponed due to mitigating circumstances. The panel

will provide a report of its findings to the Administrators, with a

copy provided to the Assistant Secretary, Deputy Assistant

Secretaries, the Director of Office of Assessments, Accountability,

(continued...)

the MSHA District Manager at any time.14 Id. at 5063. Operators also have the opportunity at

any time to implement a corrective action program to reduce S&S violations. Id. at 5063-64. 

If MSHA’s Monthly Monitoring Tool reveals that an operator has satisfied the screening

criteria set forth on MSHA’s website, MSHA also conducts a review to determine whether a

POV notice should not be issued or should be postponed after considering any mitigating

circumstances and other information.15 Id. at 5063. MSHA considers an operator’s effective

36 FMSHRC Page 2045
15(...continued)

Special Enforcement and Investigations, and the Associate

Solicitor for Mine Safety and Health. 

The Administrators will determine whether to issue a POV

Notice and notify the appropriate District Managers of the mines

that meet the criteria and have no mitigating circumstances

warranting postponement or non-issuance of a POV Notice. The

District Managers will issue the POV Notices.

B. Mem. Supporting Appl. for Temp. Relief, Ex. 11 at 1. The present case illustrates that MSHA

followed these procedures in a thorough manner. As more fully described infra, slip op. at 25,

the MSHA POV Review Panel reviewed potentially mitigating circumstances pertaining to

Brody’s Mine No. 1, including a change in ownership and a corrective action plan, before

recommending to the Administrator that a POV notice be issued.

16 Operators can request a conference with the MSHA field office supervisor or the

District Manager to review citations and orders and present any additional relevant information. 

78 Fed. Reg. at 5061. Whether such a request is granted is within MSHA’s discretion, however. 

See 30 C.F.R. § 100.6(a).

17 We note that in Rockhouse Energy Mining Co., 30 FMSHRC 1125, 1127-28 (Dec.

2008) (ALJ), although the Judge denied the motion for expedited review of 23 citations alleging

S&S violations, the Judge provided a hearing less than a month after the case was assigned to

him and approximately two months after the contests were received in the Commission’s Docket

Office. At oral argument in this case, the Secretary’s counsel agreed that, as demonstrated in

Rockhouse, if an operator became aware from MSHA’s Monthly Monitoring Tool that it was in

danger of receiving a POV notice, it could request an expedited hearing on S&S citations and

orders which had been contested. Oral Arg. Tr. 88-89, 98-101.

implementation of an MSHA-approved corrective action program as a mitigating circumstance

in its POV review. Id. 

In addition, operators can discuss citations and orders with the inspector during the

inspection and at the closeout conference.16 78 Fed. Reg. at 5061. At any time after the issuance

of an S&S citation or order, an operator may contest the citation or order and request an

expedited hearing, particularly if MSHA’s Monthly Monitoring Tool reveals that the operator

may be approaching consideration for a POV notice.17 See 29 C.F.R. §§ 2700.20, 2700.52. 

As for post-deprivation procedures, after a withdrawal order is issued under section

104(e), an operator may seek expedited temporary relief under section 105(b)(2) of the Act, 30

U.S.C. § 815(b)(2). See also 29 C.F.R. §§ 2700.46, 2700.47. See Hodel, 452 U.S. at 298-302

(holding that summary post-deprivation procedures satisfied due process). In addition, operators

36 FMSHRC Page 2046
18 Operators also have an opportunity to meet with District Managers for the purpose of

correcting any discrepancies after MSHA has conducted its POV screenings and has issued a

POV notice. 78 Fed. Reg. at 5065. Such discrepancies include, but are not limited to, “citations

that are entered incorrectly or have not yet been updated in MSHA’s computer 

system, . . . Commission decisions rendered, but not yet recorded, on contested citations, and

citations issued in error to a mine operator instead of an independent contractor at the mine.” 

Id.; B. Mem. Supporting Appl. for Temp. Relief, Ex. 11 at 1-2.

may seek expedited proceedings on contests of section 104(e) withdrawal orders.18 See 29

C.F.R. §§ 2700.20, 2700.52.

Given these procedures, the relative cost of the alternative proposed by Brody is too high. 

Requiring MSHA to wait to issue a POV notice until the notice can be based on final orders

would deprive MSHA of the ability to base POV determinations on an operator’s recent

compliance history. Moreover, elimination of the PPOV process does not deprive operators of

adequate notice given the ongoing notice provided by MSHA’s Monthly Monitoring Tool. 

Brody’s due process argument is a facial attack on the pattern of violations regulations

contained in 30 C.F.R. Part 104. “To prevail in such a facial challenge, [Brody] ‘must establish

that no set of circumstances exists under which the regulation would be valid.’” Reno v. Flores,

507 U.S. 292, 301 (1993) (citations omitted). Brody has failed to establish such a basis for its

due process challenge to the current rule. In sum, we conclude that the term “violations” in

section 104(e) of the Mine Act permits MSHA to include non-final citations/orders in a pattern

of violations. The Secretary’s interpretation of the term “violations” in section 104(e)

reasonably carries forth Congress’ intent and is consistent with the express delegation in section

104(e) of the Act. We further hold that MSHA’s adoption of the current rule was not arbitrary,

capricious or an abuse of discretion. Finally, we conclude that the current rule satisfies

procedural due process. Accordingly, we uphold the facial validity of the current rule.

C. Use of POV screening criteria not promulgated through notice-and-comment

rulemaking

Section 104.2 of the POV rule sets forth the criteria included in MSHA’s review to

identify mines with a pattern of S&S violations. In promulgating current section 104.2, MSHA

combined sections 104.2 and 104.3 of the 1990 rule. 78 Fed. Reg. at 5058. In so doing, the

current rule eliminated the PPOV process and the requirement that MSHA consider only final

orders when evaluating mines for a POV. Id. Current section 104.2(b) newly provides that 

MSHA will post specific pattern criteria on its website, and section 104.2(a) lists eight factors

which include mitigating circumstances, that MSHA considers in making its POV determination.

MSHA uses the specific numerical criteria posted on its website as an initial screening to

narrow the more than 14,000 mines within its jurisdiction to those mines that are suitable for

further consideration for a POV notice. S. Br. at 26; Oral Arg. Tr. 43, 90. After that initial

36 FMSHRC Page 2047
screening, MSHA applies the criteria set forth in section 104.2(a) in its determination of whether

to issue a POV notice to a mine. S. Br. at 26-27.

Brody argues that the specific pattern criteria posted on MSHA’s website are invalid

because they are, in effect, legislative rules and should have also been the subject of rulemaking. 

We disagree.

Section 104(e)(4) of the Mine Act authorizes the Secretary to “make such rules as he

deems necessary to establish criteria for determining when a pattern of violations of mandatory

health or safety standards exists.” 30 U.S.C. § 814(e)(4). Congress stated its “intention to grant

the Secretary in Section 10[4(e)](4) broad discretion in establishing criteria for determining

when a pattern of violations exists.” Legis. Hist. at 621. Section 104(e)(4) does not explicitly

require the Secretary to engage in rulemaking to establish POV criteria. Rather, the Secretary

must “make such rules as he deems necessary to establish criteria.” 

Section 553 of the APA requires agencies to provide notice of proposed rulemaking and

an opportunity for public comment prior to a rule’s promulgation. 5 U.S.C. § 553. Under the

APA, a “rule” is defined as “the whole or a part of an agency statement of general or particular

applicability and future effect designed to implement, interpret, or prescribe law or policy or

describing the organization, procedure, or practice requirements of an agency. . . .” 5 U.S.C. 

§ 551(4). Legislative rules are subject to notice-and-comment requirements, while general

statements of policy are not. 5 U.S.C. § 553(b)(3)(A); Nat’l Mining Ass’n v. Sec’y of Labor, 589

F.3d 1368, 1371 (11th Cir. 2009) (citations omitted). The Secretary asserts that the POV

screening criteria constitute a general statement of policy. 

The Commission has recognized that the agency’s own label of its action is indicative but

not necessarily dispositive in classifying the type of action taken. Drummond Co., 14 FMSHRC

661, 683 (May 1992) (citations omitted). Rather, “it is the ‘substance of what the [agency] has

purported to do and has done which is decisive.’” Id. (citations omitted).

In delineating the difference between legislative rules and general statements of policy,

courts consider whether the agency action establishes a binding norm. Nat’l Mining Ass’n, 589

F.3d at 1371. The “key inquiry” is the “extent to which the challenged policy leaves the agency

free to exercise its discretion to follow or not follow that general policy. . . or whether the policy

so fills out the statutory scheme that upon application one need only determine whether a given

case is within the rule’s criterion.” Id. (internal quotations and citation omitted). Courts have

explained that “[a]s long as the agency remains free to consider individual facts in the various

cases that arise, then the agency in question has not established a binding norm.” Id.

In Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 534, 538 (D.C. Cir. 1986),

another case where the issue was whether MSHA’s enforcement documents required 

notice-and-comment rulemaking, the Court held that MSHA’s “Enforcement Policy and

Guidelines for Independent Contractors” was a non-binding agency policy statement. The Court

emphasized that the policy pertained to the agency’s exercise of enforcement discretion “an area

36 FMSHRC Page 2048
19 At oral argument, the Secretary’s counsel stated that “the Secretary has devised these

numerical criteria to act as a screening device that will eliminate 99 percent or more of the mines

and will identify only this small number of mines that are most likely to have a pattern of

violations.” Oral Arg. Tr. 90. 

in which the courts have traditionally been most reluctant to interfere.” Id. at 538. The Court

stated that an agency action is not deemed a binding norm “merely because it may have ‘some

substantive impact,’ as long as it ‘leave[s] the administrator free to exercise his informed

discretion.’” Id. at 537 (citation omitted). Moreover, courts look at the language of an agency’s

pronouncement for indications that the agency may exercise its discretion. See, e.g., id. at 537-

38 (“We have, for example, given decisive weight to the agency’s choice between the words

“may” and “will”).

In a subsequent case, the D.C. Circuit similarly ruled that Department of Health and

Human Services’ communications implementing peer review policies for hospitals did not

require notice and comment because they were procedural rules. Am. Hosp. Ass’n v. Bowen, 834

F.2d 1037, 1041 (D.C. Cir.1987). The Court declared that the directives “establish a frequency

and focus of [peer] review, urging . . . enforcement agents to concentrate their limited resources

on particular areas where HHS evidently believes . . . attention will prove most fruitful.” Id. at

1050. In finding that these procedures were exempt from notice-and-comment rulemaking, the

Court noted that “[f]ar from imposing a new substantive burden on hospitals, the agency’s

decision to focus its resources on such likely problem areas gives more full effect to the intent of

the congressional framers of the peer review amendments” (id. at 1052), and that “agency

decisions on where to concentrate enforcement efforts within a universe of valid targets need not

be prefaced by notice and comment procedures” (id. at 1056).

After considering the 2013 POV screening criteria posted on MSHA’s website, we

conclude that the screening criteria are a general statement of policy. As with the peer review

policy at issue in American Hospital Association, the screening criteria assist MSHA in

ascertaining how it will “concentrate enforcement efforts” regarding POV enforcement. Id.

Moreover, the screening criteria set forth language that indicates that even if a mine meets the

criteria, MSHA still exercises discretion in determining whether a POV notice should be issued

to the mine. For instance, the screening criteria provide, “All non-abandoned mines . . . are

reviewed to determine if a pattern of violations may exist.” B. Mem. Supporting Appl. for

Temp. Relief, Ex. 10 at 1 (emphasis added). The screening criteria also provide, “The following

two sets of screening criteria are used to perform the review required under 30 CFR § 104.2. 

Mines must meet the criteria in either set to be further considered for exhibiting a pattern of

violations.” Id. (emphasis in original omitted and emphasis added).

Rather than automatic inclusion of all operators who meet the screening criteria, MSHA

has provided a process for further review. As described supra, slip op. at 5-6, 19-20 n.15, after

the screening criteria weed out the vast majority of mines,19 an MSHA Pattern of Violations

Review Panel considers mitigating circumstances, and makes a recommendation to the

36 FMSHRC Page 2049
20 We note that the POV notice issued to Brody pared down the number of violations

considered in the numerical screening to 54, and grouped the violations into four categories of

“[r]epeated S&S violations of a particular standard or standards related to the same hazard.” 78

Fed. Reg. at 5062. MSHA also considered Brody’s failure to accurately report its injury rate. S.

Mem. Supporting Opp’n to Appl. for Temp. Relief, Ex. A at 11-12. Thus, it appears that MSHA

applied section 104.2(a)(7) separately from the numerical screening criteria. 

Administrator. Our dissenting colleague’s opinion gives the impression that MSHA’s hands are

tied when considering mitigating circumstances, because such circumstances are limited to three

conditions. Slip op. at 33-34 & n.5. This is wrong. As we noted earlier, slip op. at 19, n.14, the

preamble to the POV rule lists several types of mitigating circumstances that could justify a

decision not to issue a POV notice, but explicitly states that such circumstances are not limited to

those that were articulated. 78 Fed. Reg. at 5063. Appendix A of MSHA’s Pattern of Violations

Procedures Summary also states explicitly that the conditions in the mine that may justify such a

decision may include but are not limited to, the conditions cited in the Appendix. B. Mem.

Supporting Appl. for Temp. Relief, Ex. 11 at 3. Consequently, our colleague’s statement that

“[i]f an operator meets the specific pattern criteria, it is in POV status subject only to a separate

decision that it has recently mitigated its history of violations by change of ownership or

adoption of a previously-approved MSHA approved corrective action program” is incorrect. 

Slip op. at 49. Thus, MSHA’s discretion in this regard is far broader than our colleague has

acknowledged. 

We also observe that section 104.2(a)(7) states that MSHA will consider whether there is

other information that demonstrates a serious safety or health problem at the mine which

warrants POV enforcement. The preamble states that under this rule, the information may

include, but is not limited to, the following:

• Evidence of the mine operator’s lack of good faith in

correcting the problem that results in repeated S&S

violations;

• Repeated S&S violations of a particular standard or

standards related to the same hazard;

• Knowing and willful S&S violations;

• Citations and orders issued in conjunction with an accident,

including orders under sections 103(j) and (k) of the Mine

Act; and

• S&S violations of health and safety standards that

contribute to the cause of accidents and injuries.

78 Fed. Reg. at 5062 (emphasis added).20 The application of section 104.2(a)(7) demonstrates an

exercise of discretion similar to that exercised under the prior rule. See 30 C.F.R. §§ 104.3(a)(1)

& (2) (1990). Thus, the dissent is incorrect in asserting that MSHA does not retain discretion in

its POV determination.

36 FMSHRC Page 2050
In this case, the Review Panel considered two potentially mitigating circumstances, a

change in ownership and a corrective action plan. The Panel noted that a change in Brody’s

controlling entity occurred on December 31, 2012, that there were subsequent “wholesale”

changes in company officers and mine management, and that Brody implemented a corrective

action plan in January 2013 and an updated and revised corrective action plan in March 2013. 

The Panel further noted that the rate of S&S issuances had declined during the first part of 2013. 

However, the rate of S&S issuances climbed back to its previous level in July and August 2013. 

The Panel further noted an increase in unwarrantable failure issuances in June and July 2013,

and the issuance of training and imminent danger orders in August. Hence, the Panel concluded

that the changes in personnel and the corrective action plan did not achieve “measurable

improvements in compliance.” S. Mem. Supporting Opp’n to Appl. for Temp. Relief, Ex. A at 8. 

The Panel also “considered the fact that Brody does not accurately report injury and employment

information.” Id. at 11. Based on this review, the Panel recommended issuance of a POV notice

to Brody Mine No. 1. Id. at 8-12. The process for further review in this case illustrates that the

Administrator is free to exercise his informed discretion in the issuance of a POV notice, despite

the existence of the numerical screening criteria.

Accordingly, we conclude that the screening criteria posted on MSHA’s website amount

to a general statement of policy and are not subject to notice-and-comment rulemaking

requirements.

D. Application of the current rule to violations occurring before its effective date

Finally, Brody argues that the Secretary impermissibly included 24 citations in the POV

notice that had been issued prior to the March 25, 2013 effective date of the current rule, and that

such inclusion is improper because it gives retroactive effect to the rule. It asserts that if the 24

citations were not included, it would not have satisfied the initial screening criteria. 

Agencies have the power to issue legislative rules only to the extent Congress has

conferred that power. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). A statutory

grant of legislative rulemaking power will not be understood to encompass the power to

promulgate retroactive rules unless that power is conveyed by Congress in express terms. Id.;

see also Rock of Ages Corp. v. Sec’y of Labor, 170 F.3d 148, 158 (2d Cir. 1999).

It is recognized that “a law is not retroactive merely because it is applied to conduct

before the law was passed or upsets expectations based in prior law.” Durable Mfg. Co. v. DOL,

578 F.3d 497, 503 (7th Cir. 2009) (citing Landgraf v. USI Film Prods., 511 U.S. 244, 269

(1994)). “Rather, a law has retroactive effect if it ‘would impair rights a party possessed when he

acted, increase a party’s liability for past conduct, or impose new duties with respect to

transactions already completed.’” Id. To determine whether a rule is retroactive, a court must

consider “the nature and extent of the change in the law and the degree of connection between

the operation of the new rule and a relevant past event,” guided by “familiar considerations of

fair notice, reasonable reliance, and settled expectations.” Landgraf, 511 U.S. at 270.

36 FMSHRC Page 2051
21 We are not persuaded by Brody’s contention that elimination of the PPOV process was

retroactively applied to it. Brody has failed to make allegations to support its claim. In any

event, the information provided by a PPOV was available to Brody online through MSHA’s

Monthly Monitoring Tool. 

We hold that the inclusion of the 24 citations that pre-dated the current rule’s effective

date in the POV notice issued to Brody was not a retroactive application of the rule. Application

of the rule to include those citations did not increase Brody’s liability for past conduct. As the

Secretary argues, section 104(e) may be analogized to “repeat offender” provisions under which

an enhanced penalty is not an “additional penalty for the earlier crimes,” but rather was a

“stiffened penalty for the latest crime, which is considered to be an aggravated offense because

[it is] a repetitive one.” Gryger v. Burke, 334 U.S. 728, 732 (1948). Inclusion of the citations in

the POV notice is not retroactive because it alters the present situation, not “‘the past legal

consequences of past actions.’” Nat’l Cable & Telecomm. Ass’n v. FCC, 567 F.3d 659, 670

(D.C. Cir. 2009). 

Nor does inclusion of the citations in the POV notice take away or impair vested rights

that Brody had under the prior rule. The current rule does not affect Brody’s right to contest the

24 citations after their issuance or affect any penalty assessed. By including the citations,

MSHA is considering Brody’s past inspection history without affecting Brody’s right to contest

the citations. Cf. Ass’n of Accredited Cosmetology Sch. v. Alexander, 979 F.2d 859, 864 (D.C.

Cir. 1992) (holding rules not retroactive that permit past default rates to be basis for termination

for eligibility in student loan program where default rates were permissible under prior law).

Considerations of fair notice, reasonable reliance, and settled expectations do not alter

our conclusion. Brody has not alleged that if it had known that the 24 citations would be

included in the POV notice, it would have engaged in different conduct. Brody contested the 24

citations, just as it would have if they had been issued after the effective date of the rule. Indeed,

the incentive for operators to contest S&S citations was, if anything, greater before the effective

date of the current rule because, under the prior rule, a contest of an S&S citation would delay

the time it would become final, and thus eligible for consideration toward a POV notice. 

Even before the current rule took effect, Brody knew that certain conduct could constitute

an S&S violation and that, under section 104(e), a pattern of S&S violations could trigger POV

sanctions. In fact, MSHA had sent Brody a PPOV letter on March 1, 2013, prior to the effective

date of the current rule. S. Mem. Supporting Opp’n to Appl. for Temp. Relief, Ex. A at 10. As

discussed above, nothing in the Mine Act requires that the violations in a pattern notice be final

orders. See Tarver v. Shinseki, 557 F.3d 1371, 1375 (Fed. Cir. 2009) (considering whether

claimant could point to anything she would have done differently in analysis of retroactivity).21

In addition, the numerical portion of the 2013 POV screening criteria applied to Brody

was the same as the numerical criteria posted by MSHA in 2012 under the prior rule, and both

36 FMSHRC Page 2052
22 MSHA issued a press release and posted the screening criteria on its website in

September 2010. www.msha.gov/MEDIA/PRESS/2010/NR100928.pdf. The numerical criteria

of the 2010 screening criteria are the same as the numerical criteria applied to Brody. MSHA’s

Monthly Monitoring Tool became available in April 2011. 78 Fed. Reg. at 5059;

www.msha.gov/MEDIA/PRESS/2011/NR110406.asp. 

used data collected over 12 months.22 The proposed rule also referred to the screening criteria on

MSHA’s website and indicated that it would eliminate the final order requirement. 76 Fed. Reg.

at 5720, 5721; Nat’l Petrochemical & Refiners Ass’n v. EPA, 630 F.3d 145, 164 (D.C. Cir. 2010)

(concluding that notice of proposed rulemaking provided notice of agency’s likely approach). 

Thus, Brody knew before the effective date of the rule that the numerical criteria would use data

that covered an entire year, based on the date that MSHA chose to run its screening criteria.

36 FMSHRC Page 2053
IV.

Conclusion

For the reasons discussed above, we conclude that the current rule is facially valid and

consistent with the requirements of procedural due process, that MSHA’s screening criteria were

not required to be the subject of notice-and-comment rulemaking, and that the current rule was

not applied in an impermissibly retroactive manner to Brody. Accordingly, we affirm the

Judge’s interlocutory order and remand for further proceedings. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 2054
Commissioner Althen, dissenting:

Part 104 of the regulations of the Mine Safety and Health Administration (MSHA)

governs “Pattern of Violations” (hereinafter “POV”), pursuant to section 104(e) of the Mine Act,

30 U.S.C. § 814(e). 30 C.F.R. § 104. Section 104.2, entitled “Pattern criteria,” establishes

criteria for determining the existence of a pattern of “significant and substantial,” or “S&S,”

violations of the Mine Act. 30 C.F.R. § 104.2. Subsection (a) of section 104.2 states that at least

once each year MSHA will determine if any mine meets the pattern of violations criteria and

identifies a number of criteria relevant to POV status. Subsection (b) of section 104.2

establishes use of specific numerical pattern criteria and states that “MSHA will post the specific

pattern criteria on its Web site.” 30 C.F.R. § 104.2(b).

In upholding the regulations as validly issued, the majority here permits issuance of

specific binding pattern criteria without compliance with the notice-and-comment requirements

of the Administrative Procedure Act (APA). In so doing, it wholly disregards the binding effect

of the specific pattern criteria upon MSHA and accepts MSHA’s assurance that the specific

pattern criteria are only “screening criteria.”

The majority also accepts MSHA’s claim that it may enforce a POV Notice severely

impacting property rights of mine operators before rather than after any form of hearing even

though such issuance of a POV Notice requires more than a year of analysis and MSHA has

many other enforcement weapons to deal with current, recent, or ongoing violations of its

regulations. In light of MSHA’s enforcement tools, old and new, and MSHA’s official definition

of a POV as stated in this litigation, that decision is plainly wrong. MSHA can provide

meaningful due process procedures to operators before issuance of POV Notice. The

Commission should require it to do so.

I.

APPLICATION OF THE ADMINISTRATIVE PROCEDURE ACT

A. The Determination of POV Status

1. 30 C.F.R. § 104

Although Section 104(e) of the Mine Act was enacted in 1977, MSHA did not adopt

regulations implementing Section 104(e) of the Mine Act until 1990. 55 Fed. Reg. 31,128-01

(July 31, 1990). Those regulations set forth a two-step process for issuance of POV Notice. 

Original section 104.2, entitled “Initial screening,” identified criteria for selecting mines that

would then be further reviewed for possible issuance of a POV Notice under “pattern criteria”

set forth in original section 104.3 of the regulation. The screening criteria listed included the

mines’ compliance records; enforcement measures taken by MSHA at the mine other than under

section 104(e) of the Mine Act; the extent of a lack of good faith on the part of the operator in

36 FMSHRC Page 2055
1

 The preamble to the revised regulation inaccurately states that the revised regulation

“combines existing §§ 104.2 and 104.3 into a single provision.” 78 Fed. Reg. at 5058. In fact,

the revised regulations simply changed the prior screening criteria at section 104.2 into “pattern

criteria” and added the new subsection establishing the specific numerical pattern criteria. A

specific reference to unwarrantable failures that had not expressly appeared in the prior section

104.2 was added but undoubtedly was within the scope of other “enforcement measures” in prior

section 104.2.

addressing the conditions that were leading to repeated S&S violations; the mine’s history of

accidents and injuries; and any mitigating circumstances. 30 C.F.R. § 104.2 (1990).

Later, MSHA eventually posted two sets of “Initial Screening Criteria” on its website. 

Under the prior regulations, if a mine met either set of these screening criteria, the mine was then

further reviewed under “Pattern Criteria” set forth in section 104.3 of the regulations. The

pattern criteria were used to determine if the operator “habitually” allowed the recurrence of

S&S violations, for the purpose of deciding whether there was a “pattern” to such violations. 

The pattern criteria identified in original section 104.3(a) of the regulations were: (1) a history of

repeated S&S violations of a particular standard, (2) a history of repeated S&S violations of

standards related to the same hazard, or (3) a history of repeated S&S violations caused by an

unwarrantable failure to comply. Under original section 104.3(b), these criteria were applied

only to citations/orders that had become final. 30 C.F.R. § 104.3 (1990).

MSHA adopted the revised regulations at issue here on January 23, 2013, with an

effective date of March 25, 2013. 78 Fed. Reg. 5056, 5073-74 (Jan. 23, 2013). The revised

regulations substantially changed the process for issuance of a POV Notice.

First, the former section 104.3 setting forth pattern criteria linking POV Notices to

“habitual” S&S violations related to particular standards or hazards or unwarrantable failures

was eliminated and not replaced.1

 Although not couched in terms of a “definition” of a POV, the

former section 104.3 essentially defined the “pattern” aspect of a POV by referring to habitual

S&S violations and based such habitual pattern on repeated violations of a particular standard or

standards related to the same hazard or to unwarrantable failures. Although the revised

regulation deleted section 104.3, it did not fashion a replacement definition of the “pattern” of

conduct that would result in POV status.

Second, the pre-deprivation procedures set forth in section 104.4 were eliminated and not

replaced. In responding to comments regarding the elimination of such procedures, MSHA

stated that it would allow operators to request a conference with the field office supervisor or

district manager regarding particular S&S citations, for the limited purpose of discussing

discrepancies and/or errors in data such as incorrectly entered citations. 78 Fed. Reg. at 5065-

66.

36 FMSHRC Page 2056
2

 Perhaps, MSHA was attempting to “split the baby” by establishing the existence of

specific criteria in the regulation and making that available by notice for comment while posting

the actual numerical specific criteria on its website to permit changes without compliance with

the APA. Such gamesmanship is contrary to the APA.

In response to criticism by commenters that the deletion eliminated due process

protections, MSHA cited a new enforcement tool provided on its website that allows an operator

to undertake continuing evaluation of its performance against the specific pattern criteria referred

to in the regulation. 78 Fed. Reg. at 5066. In doing so, MSHA guaranteed operators that they

would not be subject to a POV Notice if they avoided coming within the limits of the specific

pattern criteria. MSHA stated that, because operators not falling within those specific criteria

would not be subject to receipt of a POV Notice, the enforcement tool, along with the possibility

for expedited post-deprivation hearings, provided due process. Thus, MSHA bound itself to the

specific pattern criteria — operators are assured that if they do not fall within the specific pattern

criteria they will not be issued a POV Notice. 78 Fed. Reg. at 5064.

A third change in the rules was the elimination of the limitation that POV Notices could

be issued only on the basis of final citations and orders. MSHA stated that it was not feasible to

issue POV Notices on the basis of final violations and that orders under other provisions of the

Mine Act could be issued on the basis of non-final citations and orders. 78 Fed. Reg. at 5060.

Fourth, section 104.2 was rewritten. As demonstrated in Table 1 below, the “Initial

Screening Criteria” in the prior regulation were converted into “Pattern Criteria” at section

104.2(a). Second, and more importantly for present purposes than the conversion of “screening

criteria” into “pattern criteria,” a new subsection (b) was added to the regulation. It provides:

“MSHA will post the specific pattern criteria on its Web site.” 30 C.F.R. § 104.2(b). Therefore,

subsection (b) plainly creates “specific pattern criteria” but provides for their posting on

MSHA’s Website.2

Table 1

New Section 104.2 – “Pattern Criteria” Prior Section 104.2 “Initial Screening”

At least once each year, the compliance and

accident, illness, and injury records of mines

are reviewed to determine if any mines meet

the pattern of violations criteria. MSHA’s

review to identify mines with a pattern of

S&S violations will include:

At least once each year, MSHA shall review

the compliance records of mines. MSHA’s

review shall include an examination of the

following:

104.2(a)(1)

History of S&S citations

104.2(a)(1)

History of S&S citations

104.2(a)(2)

Closure orders under Mine Act section 104(b)

104.2(a)(2)

Closure orders under Mine Act section 104(b)

36 FMSHRC Page 2057
104.2(a)(3)

Citations and orders under Mine Act section

104(d)

104.2(b)(1) and (2)

Enforcement measures other than 104(e);

evidence of lack of good faith through

repeated S&S violations

104.2(a)(4)

Imminent danger orders

104.2(a)(3)

Imminent danger orders

104.2(a)(5)

Orders under Mine Act section 104(g)

104.2(b)(1) and (2)

Enforcement measures other than 104(e);

evidence of lack of good faith through

repeated S&S violations

104.2(a)(6)

Enforcement measures other than 104(e)

104.2(b)(2)

Enforcement measures other than 104(e)

104.2(a)(7)

History of accident, illnesses, injuries

104.2(b)(3)

History of accident, illnesses, and injuries

104.2(a)(8)

Mitigating circumstances

104.2(b)(4)

Mitigating circumstances

New Section104.2(b)

“MSHA will post the specific pattern

criteria on its Web site.”

No comparable provision

The screening criteria posted on MSHA’s website under the prior rule identified two sets

of criteria with numerical specifications for screening. The introduction to the criteria was

entitled Initial Screening Criteria and stated that “[t]he following two sets of screening criteria

are used to perform the initial screening required under 30 C.F.R. § 104.2. Mines must meet the

criteria in either set to be further considered for exhibiting a potential pattern of violations.” 

S. Mem. Supporting Mot. for Partial Summ. Dec., Ex. 2 at 1 (emphasis omitted).

In promulgating the revised regulations, MSHA utilized the same specific numerical

criteria that had been on the website under the prior regulation. However, they were now issued

as “specific pattern criteria” in accordance with the establishment of specific pattern criteria in

the regulation in section 104.2(b). MSHA also modified the introductory language to confirm

the criteria as the specific pattern criteria referenced in the regulation itself. The outcome

determinative importance of the specific pattern criteria created in the regulation itself and then

posted on the website was emphasized in the preamble to the final POV: “Final § 104.2(b),

proposed as § 104.2(a), provides that MSHA will post, on its Web site at

http://www.msha.gov/POV/POVsinglesource.asp, the specific criteria, with numerical data, that

the Agency will use to identify mines with a pattern of S&S violations.” 78 Fed. Reg. at 5064.

The introduction to the specific criteria confirmed the numerical specific criteria as “Pattern

36 FMSHRC Page 2058
3

 “Words have power and names have meaning.” Unknown author. The majority

persists in incorrectly referring to the “pattern criteria” established in section 104.2(b) and on

MSHA’s website as “screening criteria.” The change from “screening criteria” to “pattern

criteria” is not outcome determinative but neither is it inconsequential. It demonstrates the

substantive change in section 104.2 with the elimination of the prior section 104.3.

4

 Here, we are concerned with whether meeting the specific pattern criteria for POV

status means the operator is in POV status and receives a POV notice subject only to a separate

mitigation review. Because the 104.2(a) criteria are virtually identical to the specific criteria, but

without numerical targets, and the process calls for a review only of mitigation factors after the

operator is in POV status, an operator is in POV status after it falls within the specific pattern

criteria.

Criteria”3 and provided: “The following two sets of screening criteria are used to perform the

review required under 30 C.F.R. § 104.2. Mines must meet the criteria in either set to be further

considered for exhibiting a potential pattern of violations.” B. Mem Supporting Appl. for Temp.

Relief, Ex. 10 at 1 (emphasis added).

The text of the introduction continues to use the term “screening criteria.” However, the

language no longer refers to use for an “initial screening” but rather for the “review required

under 30 C.F.R. § 104.2” – namely, the pattern criteria. More importantly, MSHA demonstrates

the actual use of the specific pattern criteria in its POV Procedures Summary. A mine satisfying

either set of specific pattern criteria is in POV status and will receive a POV Notice unless

MSHA separately decides that the mine has mitigated its tendency toward S&S

citations/orders/violations.4

2. Process for Designation of POV Status

MSHA provides a Pattern of Violations (POV) Procedures Summary on its website. 

B. Mem. Supporting Appl. for Temp. Relief, Ex. 11. If a mine does not meet the specific pattern

criteria, it is not in POV status and no consideration of issuance a POV notice is given to it. On

the other hand, when an operator meets the specific pattern criteria MSHA considers it in POV

status and moves only to a consideration of possible mitigation.

At that point, MSHA headquarters seeks input from the appropriate District Manager, but

not with respect to any of the Pattern Criteria, but rather with regard to three described and

narrowly-drawn “mitigating circumstances” – namely, the mine has been deactivated, mine

ownership has changed to an operator less likely to incur S&S violations, or the operator has

adopted a corrective action plan approved by MSHA. B. Mem. Supporting Appl. for Temp.

Relief, Ex. 11 at 3. Upon receipt of the District Manager’s report on mitigating circumstances,

36 FMSHRC Page 2059
5

 The majority asserts that the mitigating circumstances are not limited to the three types

of mitigation identified in the POV Procedures Summary because the Appendix uses the stock

phrase “may include, but are not limited to.” Slip op. at 24. Nowhere in the POV Procedures

Summary, the proposed regulation, or the final regulation does the Secretary discuss or give any

other example of a possible mitigating circumstance. Further in the Panel recommendation

leading to the POV Notice to Brody, the Panel discusses and dismisses each, and only each, of

the three possible reasons for mitigation. S. Mem. Supporting Opp’n to Appl. for Temp. Relief,

Ex. A at 8-12. Even more importantly, as discussed at length in the text infra, consideration of

mitigation comes after an operation is evaluated as being in POV status under the specific

pattern criteria on the website. Therefore, although consideration of mitigation may bear at a

later stage upon issuance of a POV Notice, it is not relevant to the determination under the

specific pattern criteria that an operator is in POV status. Therefore, it is not a discretionary

consideration with respect to whether the operator has reached a number of S&S

citations/orders/violation to be in POV status. Nor does it bear upon whether the operator may

not be considered to be in POV status because it has not reached the outcome determinative

number of citations/orders/violations.

an “MSHA POV panel” is to review the mitigation information provided by the District

Manager.5 Id. at 1.

3. Panel Recommendation Leading to POV Notice

The POV Panel recommendation related to Brody is dated October 22, 2013, and

comports with the Procedures Summary. S. Mem. Supporting Opp’n to Appl. for Temp. Relief,

Ex. A. After an introduction in which the specific numerical pattern criteria (and only the

specific numerical pattern criteria) are quoted, the Panel memorandum focuses exclusively on,

and rejects, possible mitigation. In Section 1, the Panel discusses and rejects a change of

ownership as a possible reason for mitigation. Id. at 8-10. In Section 2, the Panel discusses and

rejects Brody’s corrective action program as a possible reason for mitigation. Id. at 10-11. 

Finally, in Section 3, the Panel discusses and rejects inactivation as a possible reason for

mitigation. Id. at 12.

Thus, POV status was established to the satisfaction of MSHA by the specific pattern

criteria and was then subject to a separate review of narrow mitigation circumstances. No

discretionary consideration appears on the record to have been exercised by MSHA regarding

the POV status once the specific criteria were met; instead, the only discretionary element was

the determination whether MSHA should postpone issuance of a POV Notice on the basis of a

mitigating factor.

The process flowed from the specific pattern criteria, to an inquiry to the District

Manager regarding mitigation, to Panel review of mitigation, to issuance of a POV notice. 

Although 253 unproven citations/orders were the basis for Brody’s POV status, the POV Notice

cited 54 citations/orders for S&S violations grouped in four categories of alleged violations in

36 FMSHRC Page 2060
6

 Three of the citations/orders occurred after the end of the review period of September

2012 to August 2013, an anomaly that MSHA was not able to explain at oral argument. See

Notice No. 7219154; Oral Arg. Tr. 55-56.

7

 While this definition has been submitted in briefs before us, the reasonableness of this

definition was not certified to the Commission and was not briefed by the parties. Therefore,

whether this definition is a reasonable interpretation of section 104(e) of the Mine Act is not

before the Commission. Not only is the issue not before us but also MSHA does not further

define the meaning of “recognizably consistent.” Nonetheless, it should be noted that asserting

that a “series” of two or three S&S violations constitutes a POV within the meaning of section

104(e) appears perilously close to being plainly inconsistent with MSHA’s own recognition in

the preamble to the final regulations that POV status is aimed at a small number of recalcitrant

operators. According to “MSHA’s Key Indicators Report, Citations and Orders Issued Report,

All Coal 10/01/2010 - 09/30/2011,” the number of just coal mine 104(a) citations that were

designated S&S averaged 32,616 annually for the four years from 2008 through 2011. 

Consequently, a definition of a POV as two or three S&S violations in a series that are

recognizably consistent would appear to put every mine in the mining industries in POV status at

(continued...)

categories of related hazards. S. Mem. Supporting Opp’n to Appl. for Temp. Relief, Ex. A at 9;

Notice No. 7219154. The groupings ranged from seven to 20 citations/orders.6 Notice No.

7219154.

4. Definition of Pattern of Violations

MSHA’s regulation does not define a pattern of violations. However, in this litigation,

the Secretary has now defined a “pattern of violations.” Citing Black’s Law Dictionary, the

Secretary defines the word “pattern” to mean “[a] mode of behavior or series of acts that are

recognizably consistent.” S. Br. at 19-20. MSHA does not elaborate upon the meaning of

“recognizably consistent.”

Then, the Secretary provides specificity as to the number of S&S violations that will

constitute a “series” or “pattern” stating that: “Courts interpreting the term ‘pattern’ as used in

other federal statutes have held that as few as two instances may suffice . . . The risk of an

erroneous POV determination should be measured against that low threshold. . . . [A]s discussed

above, a POV notice may lawfully be predicated on as few as two or three S&S violations.” 

S. Br. at 19, 22 (citations omitted).

Therefore, the Secretary’s interpretation of a “pattern of violations” within the meaning

of Section 104(e) of the Mine Act effectively comes down to a “mode of behavior or series of

acts [meaning at least two or three S&S violations] that are recognizably consistent.” The

definition does not include any notion of elevated violations, high degree of negligence, or

accident or injury rate, etc.7

36 FMSHRC Page 2061
7

(...continued)

MSHA’s election. Only the specific numerical pattern criteria not considered “substantive” by

the Secretary stand in the way of such industry-wide application.

8

 The Secretary has not argued that the specific pattern criteria are an interpretive rule. 

(continued...)

The Secretary applies its definition to Brody. The POV Notice divides the 54 alleged

violations in Brody’s POV Notice into four categories. One of those categories consists of seven

citations/orders citing conditions and/or practices that allegedly contribute to inadequate

examinations. The Secretary asserts that, separate and apart from other citations identified in the

POV Notice, proof of those seven citations/orders (or some unidentified lesser number but

presumably diminishing to two or three) would suffice to prove a pattern of violations. S. Br. 

at 22.

The Secretary contends that the statement of specific pattern criteria which is provided

for at 30 C.F.R. § 104.2(b) and published on MSHA’s website is a statement of policy. Brody

characterizes them as substantive (also referred to as “legislative” rules) requiring notice and

comment. Therein rests the APA notice and comment dispute.

B. The Distinction Between Statements of Policy and Substantive Rules

The importance of notice and comment to transparent and principled governance needs

no elaboration. Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1044 (D.C. Cir 1987); Batterton v.

Marshall, 648 F.2d 694, 700-02 (D.C. Cir. 1980); Pac. Gas & Elec. Co. v. FPC, 506 F.2d 33, 38

(D.C. Cir. 1974). Nor is it necessary to recite from the litany of cases noting the difficulty

encountered in distinguishing among substantive rules, interpretive rules, and statements of

policy. Am. Min. Congress v. MSHA, 995 F.2d 1106, 1109 (D.C. Cir. 1993); Cmty Nutrition

Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987); Gen. Motors Corp. v. Ruckelshaus, 742 F.2d

1561, 1565 (D.C. Cir. 1984). Finally, by way of preamble, although the APA provides

exemptions from its notice-and-comment requirements, such exemptions must be narrowly

construed. Am. Hosp. Ass’n v. Bowen, 834 F.2d at 1044 (“In light of the obvious importance of

these policy goals of maximum participation and full information, we have consistently declined

to allow the exceptions itemized in [section] 553 to swallow the APA’s well-intentioned

directive.”).

Our recourse, of course, is to the case law that determines the fate of the parties’

arguments. Are the specific pattern criteria established at 30 C.F.R. § 104.2(b) and published on

MSHA’s website merely a statement of policy or are they a substantive rule? If the specific

pattern criteria are merely a statement of policy, then “[t]he agency retains the discretion and the

authority to change its position—even abruptly—in any specific case because a change in its

policy does not affect the legal norm.” Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir.

1997).8

 If the specific pattern criteria constitute a substantive rule then MSHA may not

36 FMSHRC Page 2062
8

(...continued)

In American Mining Congress v. Mine Safety and Health Administration, the District of

Columbia Circuit Court distinguished between statements of policy and interpretive rules for

purposes of analyzing whether the promulgation is a substantive rule. It first concurred with the

application of a two-step test in cases involving statements of policy. Id. at 1111 (citations

omitted). With respect to interpretive rules, the Circuit Court applied a “legal effect” test

consisting of:

Id. at 1112. Given the Secretary’s position and the nature of the specific pattern criteria, we 

need not concern ourselves with that test in this case.

implement the specific pattern criteria without following the notice-and-comments requirements

of the APA. 5 U.S.C. § 553.

Citing Drummond Co., 14 FMSHRC 661, 686 (May 1992), the Secretary describes the

distinction between a statement of policy and a rule as based upon a two-fold test of whether the

agency’s action: (1) “acts prospectively, i.e., ‘does not impose any rights or obligations,’” and 

(2) “leaves the agency and its decision-makers free to exercise discretion.” S. Br. at 25. Brody

takes only a longer route to reach the same test. It first recites in a more general fashion the

general distinction between substantive rules and statements of policy as set forth in Pacific Gas

& Electric Co. v. FPC, 506 F.2d at 38, and then urges the same test as MSHA, quoting from the

same page of the same case relied upon by the Commission in Drummond – namely, American

Bus Association v. United States, 627 F.2d 525, 529 (D.C. Cir. 1980). B. Br. at 31.

As an initial step in differentiating statements of policy from substantive rules, it is useful

to examine the agency’s basis for its promulgation. Is the agency exercising statutory authority

to supply substance for vague or open-ended statutory guidance? If so, the agency’s action is

likely to be viewed as legislative or substantive. See Paralyzed Veterans of Am. v. D.C. Arena

L.P., 117 F.3d 579, 588 (D.C. Cir.1997) (“If the statute or rule to be interpreted is itself very

general, using terms like ‘equitable’ or ‘fair,’ and the ‘interpretation’ really provides all the

guidance, then the latter will more likely be a substantive regulation.”); see also United States v.

Picciotto, 875 F.2d 345, 348 (D.C. Cir. 1989). Although Paralyzed Veterans involved an

interpretive regulation, the importance of its analysis applies equally well to a promulgation

establishing binding enforcement parameters for an open-ended statute such as section 104(e)

that instructs MSHA to develop, by rule, “criteria” for a wholly undefined “pattern of

violations.” 30 U.S.C. § 814(e)(4).

Moreover, an agency’s creation of a numerical prescription by which it will exercise its

authority is especially needful of notice and comment. In Catholic Health Initiatives v. Sebelius,

36 FMSHRC Page 2063

(1) whether in the absence of the rule there would not be an adequate legislative 

basis for enforcement action or other agency action to confer benefits or ensure 

the performance of duties;(2) whether the agency has published the rule in the 

Code of Federal Regulations; (3) whether the agency has explicitly invoked its 

general legislative authority; or (4) whether the rule effectively amends a prior 

legislative rule. 
9

 The Hoctor Court expresses especially eloquently the importance of notice and

comment when rights are affected by numerical limits arbitrarily established by the agency:

There is no process of cloistered, appellate-court type reasoning by

which the Department of Agriculture could have excogitated the

eight-foot rule from the structural-strength regulation. The rule is

arbitrary in the sense that it could well be different without

significant impairment of any regulatory purpose. But this does

not make the rule a matter of indifference to the people subject to

it. There are thousands of animal dealers, and some unknown

fraction of these face the prospect of having to tear down their

existing fences and build new, higher ones at great cost. The

concerns of these dealers are legitimate and since, as we are

stressing, the rule could well be otherwise, the agency was obliged

to listen to them before settling on a final rule and to provide some

justification for that rule, though not so tight or logical a

(continued...)

617 F.3d 490 (D.C. Cir. 2010), the District of Columbia Circuit Court described the relationship

between an agency’s establishment of numerical targets and rulemaking:

We too have recognized that “numerical limits cannot readily be

derived by judicial reasoning, . . . .” Mo. Pub. Serv. Comm’n v.

FERC, 215 F.3d 1, 4 (D.C. Cir. 2000). Our statement in Missouri

Public Service relied on Hoctor v. USDA, 82 F.3d 165, 170 (7th

Cir. 1996). Hoctor held that an agency performs a legislative

function when it makes “reasonable but arbitrary (not in the

‘arbitrary or capricious’ sense) rules that are consistent with the

statute or regulation under which the rules are promulgated but not

derived from it, because they represent an arbitrary choice among

methods of implementation. A rule that turns on a number is likely

to be arbitrary in this sense.”

Id. at 495 (footnote omitted).

In Hoctor, 82 F.3d at 167-68, the Department of Agriculture established a minimum

height for fences enclosing dangerous animals. The minimum height requirement was

established through an interpretation of the agency’s valid regulation governing the structural

strength of enclosures for housing animals. The height requirement was arbitrary – again in the

sense that a different height could have easily been selected. Thus, not only was the

interpretation binding, but also public comment was especially useful and important. The

Circuit Court found the numerical requirement constituted a substantive rule that could be issued

only after notice and comment.9

 Id. at 171-72.

36 FMSHRC Page 2064
9

(...continued)

justification as a court would be expected to offer for a new 

judge-made rule. Notice and comment is the procedure by which

the persons affected by legislative rules are enabled to

communicate their concerns in a comprehensive and systematic

fashion to the legislating agency.

Id. at 171.

10 In General Electric Company v. EPA, 290 F.3d 377, 382 (D.C. Cir. 2002), the District

of Columbia Circuit noted that separate standards had developed for differentiating statements of

policy from substantive rules. One is the two-step test cited in Drummond, 14 FMSHRC at 686,

and by the parties; the other a three-step test described in Molycorp., Inc. v. EPA, 197 F.3d 543,

545 (D.C. Cir. 1999). The Court found the tests overlapped at the step “in which the court

determines whether the agency action binds private parties or the agency itself.” 290 F.3d at 382

(emphasis added).

Indeed, in Hoctor, the Seventh Circuit effectively intertwined the likelihood that an

agency pronouncement effectuating a vague statutory instruction is legislative with a finding that

a numerically based rule binding the agency in the course of implementing a statute is almost

inevitably substantive: “[W]hen a statute does not impose a duty on the persons subject to it but

instead authorizes (or requires – it makes no difference) an agency to impose a duty, the

formulation of that duty becomes a legislative task entrusted to the agency.” Id. at 169; see also

Mission Grp. Ks., Inc. v. Riley, 146 F.3d 775, 782-84 (10th Cir. 1998).

Consequently, promulgation of arbitrary numerical criteria pursuant to a statutory

directive to implement vague statutory terms creates a strong appearance of legislative type

action. Nonetheless, it is still necessary to apply the acid test, the “rubber meets the road test,”

cited by the parties to determine whether the promulgation is a statement of policy or substantive

rule. 

Although the test is described as two-fold, it may aptly be thought of as two sides of a

common coin. See McLouth Steel Prod. Corp. v. Thomas, 838 F.2d 1317, 1320 (D.C. Cir. 1988

(“In practice, there appears some overlap in the Community Nutrition criteria; the second

criterion may well swallow the first.”). If the agency binds itself or others to a set of criteria,

then, as the Hoctor Court expressed, it is vital for the public to have a right to comment.10

The Commission recognized this principle in Drummond, when it cited Batterton v.

Marshall. In Batterton, the Circuit Court reviewed a new methodology for determining

unemployment statistics issued by the Department of Labor without following the 

notice-and-comment procedures of the APA. The new methodology adversely affected

payments to the State of Maryland under the Comprehensive Employment and Training Act. 

Maryland filed an action seeking to vacate the new methodology. Concluding that the new

36 FMSHRC Page 2065
11 In doing so, the Circuit Court cited Pickus v. U. S. Bd. of Parole, 507 F.2d 1107 (D.C.

Cir 1974), in which the Circuit Court set aside criteria for determining the granting of parole,

issued by the U.S. Board of Parole without notice and comment. The Circuit Court found that

the challenged rules greatly impacted the chances for parole and thus substantially affected the

rights of persons subject to the regulations. Id. at 1112-13. In Batterton, supra, Pickus, and

here, the rules are “formulalike” and are binding both with respect to operators that are not in

POV status and operators that are in POV status. Indeed, the criteria in Pickus were not outcome

determinative, and therefore, had less of a binding effect upon decision making than the specific

pattern criteria.

formula constrained discretion, the Circuit Court found the methodology constituted a

substantive rule requiring notice and comment.11 648 F.2d at 696-97, 711.

Voluminous precedent establishes that action by an agency that binds the agency, the

affected public, or both, is a substantive rule. Elec. Privacy Info. Ctr. v. DHS, 653 F.3d 1, 7

(D.C. Cir. 2011) (“Our cases ‘make clear that an agency pronouncement will be considered

binding as a practical matter if it either appears on its face to be binding, or is applied by the

agency in a way that indicates it is binding.’”) (citation omitted); Natural Res. Def. Council v.

EPA, 643 F.3d 311, 321 (D.C. Cir. 2011) (“[B]ecause the Guidance binds EPA regional

directors, it cannot, as EPA claims, be considered a mere statement of policy; it is a rule.”);

CropLife Am. v. EPA, 329 F.3d 876, 882 (D.C. Cir. 2003) (“EPA has enacted a firm rule with

legal consequences that are binding on both petitioners and the agency. . . .”); Gen. Elec. v. EPA,

290 F.3d at 382 (“[T]he court determines whether the agency action binds private parties or the

agency itself”); Syncor v. Shalala, 127 F.3d at 94 (“The primary distinction between a

substantive rule . . . and a general statement of policy, then, turns on whether an agency intends

to bind itself to a particular legal position.”); U.S. Tel. Ass’n v. FCC, 28 F.3d 1232, 1234-35

(D.C. Cir. 1994) (“[W]e have said repeatedly that it turns on an agency’s intention to bind itself

to a particular legal policy position. . . . [T]he Commissioner has sought to accomplish the

agency hat trick – avoid defense of its policy at any stage.”); McLouth Steel Prod. Corp. v.

Thomas, 838 F.2d 1317, 1322 (D.C. Cir. 1988) (Rule “substantially curtails EPA’s discretion in

delisting decisions and accordingly has present binding effect.”); Cmty. Nutrition v. Young, 818

F.2d at 948 (“[A]gency’s own words strongly suggest that action levels are not musings about

what the FDA might do in the future but rather that they set a precise level of aflatoxin

contamination that FDA has presently deemed permissible.”).

The remaining task regarding the APA dispute, therefore, is to determine whether the

specific pattern criteria established in 30 C.F.R. § 104.2(b) and identified on the website are

binding on MSHA or are binding upon members of the public.

36 FMSHRC Page 2066
C. Specific Pattern Criteria Established at 30 C.F.R. § 104.2(b) and Published on

MSHA’s Website Constitute a Substantive Rule Requiring Notice and Comment.

The problem for the Secretary here is that the specific pattern criteria are not actually

“screening” procedures; they are outcome determinative specific numerical standards for POV

status. Indeed, the Secretary relies upon the binding effect of the specific pattern criteria for its

due process defense. Further, although the Secretary claims MSHA exercises discretion in

deciding upon POV status after application of the specific pattern criteria, the procedures used

by MSHA and the facts of this case compellingly demonstrate otherwise. 

With respect to the claimed exercise of discretion, review of the limited mitigation

circumstances occurs after an operator is in POV status under the specific pattern criteria. The

limited mitigation opportunities do not relate to whether the operator is in the POV status. There

is no further discretionary consideration of that issue. Only if an operator meets a separate

mitigation procedure may POV status be avoided. Finally, if the mine does not meet the specific

pattern criteria, it is assured by MSHA that it is not in POV status.

1. The Specific Criteria Are Issued Pursuant to a Statutory Directive to Issue

Rules Implementing Section 104(e) of the Mine Act and Identify Specific

Numerical Criteria for the Determination of POV Status.

In Drummond, the Commission noted the limited significance of an agency’s

classification of its action, recognizing that the agency’s label might be “indicative” but certainly

is not “dispositive.” 14 FMSHRC at 683. “[I]t is the substance of what the [agency] has

purported to do and has done which is decisive.” Chamber of Commerce v. OSHA, 636 F.2d

464, 468 (D.C. Cir. 1980) (internal quotations and citation omitted); see also Brock v. Cathedral

Bluffs Shale Oil Co., 796 F.2d 533, 537-38 (D.C. Cir. 1986). In determining the substance of

what MSHA has done, we look not just at the wording of the promulgation but also its source

and purpose, the methodology used, and most importantly its binding effect upon MSHA and the

public.

Section 104(e) of the Mine Act provides for the issuance of POV Notices, but does not

define a pattern of violations. Instead, Congress gave MSHA the authority and duty to issue

rules determining when a pattern of violations exist. Indeed, the statute provides that “[t]he

Secretary shall make such rules as he deems necessary to establish criteria for determining when

a pattern of violations of mandatory health or safety standards exists.” 30 U.S.C. § 814(e)(4).

In issuing the rules defining and governing patterns of violations, MSHA performs

essentially a “legislative” function delegated to it by Congress. Paralyzed Veterans, 117 F.3d at

588. Further, MSHA has implemented numerical criteria as “specific pattern criteria.” 

Obviously, the criteria are “arbitrary” in the sense of being “impossible to give a reasoned

distinction between numbers just a hair on the OK side of the line and ones just a hair on the notOK side.” Mo. Pub. Serv. Comm’n v. FERC, 215 F.3d 1, 5 (D.C. Cir. 2000). The ratio of S&S

citations/orders per 100 inspection hours could have been 7.0, 7.5, 8.5, 9, etc., but MSHA chose

36 FMSHRC Page 2067
12 In the preamble to the regulation, MSHA offered a nonbinding promise that it will

notify the public of impending changes to the specific pattern criteria and offer a chance for

comment. 78 Fed. Reg. at 5064. Having not given the public a chance to comment upon the

institution of the specific pattern criteria established in section 104.2(b), there seems little reason

to accept as meaningful in any way an informal MSHA assurance that it will want, invite, or

listen to public comments in the future. In any event, the APA does not envision promised

invitations as a substitute for legal rights.

8.0. Perhaps that is a reasonable number but, regardless, it is arbitrary. MSHA, therefore, has

identified with arbitrary numerical specificity the specific criteria to be used in establishing

whether operators are, or are not, in the POV status broadly created by Congress – a classic

legislative function.

Further, the use of the specific pattern criteria is established in the rule itself at 30 C.F.R.

§ 104.2(b). MSHA apparently recognized it was necessary to use substantive rulemaking to

establish specific pattern criteria. However, it then decided to place the enumeration of the

specific criteria on a website away from notice and comment by the public. It gave public notice

of, and right to comment upon, the ghost of specific pattern criteria but the substance remained

shielded from public comment.

It is oxymoronic to establish the use of specific pattern criteria in the rule itself but then

establish the specific pattern criteria that contain both numerical and durational specifications on

a website immune from public notice or comment. If MSHA may take such an approach here,

there is little to constrain MSHA from creating other standards in the body of the regulations

while placing the substantive terms on its website where they will be sheltered from the APA.12

If MSHA may create the existence of criteria by rule but shuffle off the actual substance of the

criteria to a website away from public notice and comment, little is left of the APA.

2. The Specific Criteria of Section 104.2(b) and Published on the Website are

Binding upon MSHA. The Public Was Entitled to Comment Upon Specific

Criteria Eliminating Mines from POV Status.

The Secretary argues that “the screening [specific pattern] criteria do not narrowly

circumscribe MSHA’s discretion.” S. Br. at 26. That statement is clearly false with regard to a

determination that an operator is not in POV status. The specific criteria fully circumscribe

MSHA’s discretion regarding finding operators that are not POV violators.

Recall, while an agency’s characterization of its pronouncement should be given some

weight, the language of the agency pronouncement is far more important. In American Bus

Association v. United States, the District of Columbia Circuit gave decisive weight to the

Interstate Commerce Commission’s use of the word “will.” Use of “will” rather than “may”

demonstrated that the pronouncement was not a statement of policy. 627 F.2d at 532. In this

case, MSHA’s specific pattern criteria assures operators that “[m]ines must meet the criteria” to

be considered for POV status. B. Mem. Supporting Appl. for Temp. Relief, Ex. 10 at 1

36 FMSHRC Page 2068
13 Just as an example, according to MSHA’s Key Indicators Report, Citations and Orders

Issued Report, All Coal 10/01/2010-09/30/2011, the average number of coal mine 104(a)

citations that were designated S&S averaged 32,616 annually for the four years from 2008

through 2011.

(emphasis added). Use of the imperative “must” demonstrates compellingly that the agency has

bound itself to not find an operator in POV status if it does not meet the specific criteria.

Indeed, in MSHA’s promulgation of the revised regulation and even in its defense of the

regulation, the Secretary has assured operators that the specific criteria will be the final

determinant that they are not in POV status if they stay below the numerical limits for POV

status established in the specific criteria. In the preamble to the final rule, MSHA stated that it

was posting the specific criteria on its website and that such posting constitutes the

specific criteria, with numerical data, that the Agency will use to

identify mines with a pattern of S&S violations. MSHA has

determined that posting the specific criteria on its Web site,

together with each mine’s compliance data, will allow mine

operators to monitor their compliance records to determine if they

are approaching POV status.

78 Fed. Reg. at 5064.

Thus, the agency reaffirms that an operator not meeting the specific criteria will not be

found in POV status. Without doubt, section 104.2(b) serves as a binding commitment by

MSHA that it will not assert POV status against any operator not meeting the specific pattern

criteria provided for in section 104.2(b) of the regulation and amplified upon on the website. 

Because the Secretary has defined a POV as two or three S&S violations in a series that is

recognizably consistent, almost every mine in the mining industries could be issued a POV

Notice absent the assurance provided by MSHA through use of the specific criteria to limit the

number of mines reaching POV status.13 Therefore, not only are the specific criteria binding on

MSHA but that binding status upon MSHA provides an important assurance to operators that

POV status will be used not as a typical “enforcement” tool but rather, as intended, only as an

severe weapon directed at those few operators that have demonstrated over a long period a

repeated disregard for the health and safety standards issued under the Mine Act. 78 Fed. Reg. at

5058. At the same time, it positively precludes MSHA from issuing a POV Notice to an operator

that has a pattern of recognizably consistent significant and substantial violations of even the

most important safety standards, if the entirety of the operator’s record remains within the “safe

zone” of the specific pattern criteria.

Perhaps the Secretary simply misperceived that only operators that might be designated

for POV status have an interest in, or right to comment upon, numerical specific pattern criteria

for establishing POV status. If so, MSHA forgets the far broader public that has an interest in

36 FMSHRC Page 2069
such standards. Those in the public, the many safe and responsible operators, miners, miners’

representatives, safety societies, and others were not given any chance to comment on the

specific pattern criteria positively eliminating operators from POV status.

The right to notice and opportunity to comment upon threshold levels for exclusion from

POV status is as important as the right to comment upon threshold levels for inclusion. Notice

and comment must be available not only to those who may claim the standards are too strict but

also to those who may believe the standards are too lenient. Self-evidently, broad public sectors

had a right to comment upon these substantive specific pattern criteria that exclude operators

from POV status.

3. The Specific Criteria of Section 104.2(b) and Published on the Website

Effectively are Used by MSHA to Determine POV Status and, Therefore, are

Binding upon Mine Operators with Respect to POV Status.

Given the clarity of the APA that MSHA is required to grant the industry, miners, and

public an opportunity to comment upon specific criteria binding upon MSHA in finding an

operator is not in POV status, we could perhaps forego discussing whether the specific pattern

criteria also are the substantive bases for finding an operator is in POV status. However, the

desire for those with power to have “flexibility” in the exercise of that power is a common

affliction. It is a danger against which the APA is intended to safeguard.

It is vital, therefore, to constrain unlawful reaches for flexibility by Federal agencies. So,

we must also determine whether MSHA’s stretch for “flexibility” by setting the table for specific

pattern criteria by rule 104.2(b) but then putting all the food off the table without permitting

comment by the public is lawful or instead creates a template for an ever broadening host of

website criteria that “flexibly” impose duties and penalties without APA notice-and-comment

procedures. This case illustrates the phenomenon observed by the District of Columbia Circuit

in Appalachian Power Company v. EPA, 208 F.3d 1015 (D.C. Cir. 2000):

Congress passes a broadly worded statute. The agency follows

with regulations containing broad language, open-ended phrases,

ambiguous standards and the like. . . . Law is made, without notice

and comment, without public participation, and without

publication in the Federal Register or the Code of Federal

Regulations. With the advent of the Internet, the agency does not

need these official publications to ensure widespread circulation; it

can inform those affected simply by posting its new guidance or

memoranda or policy statement on its web site. An agency

operating in this way gains a large advantage. “It can issue or

amend its real rules, i.e., its interpretative rules and policy

statements, quickly and inexpensively without following any

statutorily prescribed procedures.” Richard J. Pierce, Jr., Seven

Ways to Deossify Agency Rulemaking, 48 Admin. L. Rev. 59, 85

36 FMSHRC Page 2070
(1995). The agency may also think there is another advantage –

immunizing its lawmaking from judicial review.

Id. at 1020 (footnote omitted).

The decision as to whether a purported policy statement effectively circumscribes

discretion is not a mechanical test. Am. Bus Ass’n v. U.S., 627 F.2d at 529-30. A close

examination is required of the language of the pronouncement, its intended effect, and the effect

upon the regulated community.

a. Comparison of 104.2(a) and 104.2(b)

Here, the only commonsense reading of section 104.2 is that operators failing the specific

criteria are in POV status. Thus, they will receive a POV Notice unless MSHA makes a

separate, later finding of mitigation under one of three narrow circumstances.

As demonstrated by the table set forth as Table 2 below, the criteria of section 104.2(a)

merely duplicate the specific criteria of section 104.2(b) except the section 104.2(a) criteria do

not identify numerical standards for POV status.

36 FMSHRC Page 2071
Table 2

POV Pattern Criteria Established and Listed

in 30 C.F.R. § 104.2(a)

POV Pattern Criteria Established in 30 C.F.R.

§ 104.2(b) and Listed on Website

(1) Citations for S&S violations; 

(2) Orders under section 104(b) of the Mine

Act for not abating S&S violations; 

(3) Citations and withdrawal orders under

section 104(d) of the Mine Act, resulting

from the mine operator’s unwarrantable

failure to comply; 

(4) Imminent danger orders under section

107(a) of the Mine Act; 

(5) Orders under section 104(g) of the Mine

Act requiring withdrawal of miners who have

not received training and who MSHA

declares to be a hazard to themselves and

others;

(6) Enforcement measures, other than section

104(e) of the Mine Act, that have been

applied at the mine;

(7) Other information that demonstrates a

serious safety or health management problem

at the mine, such as accident, injury, and

illness records; and

(1) At least 50 citations/orders for significant

and substantial (S&S) violations issued in the

most recent 12 months.

(2) A rate of eight or more S&S

citations/orders issued per 100 inspection

hours during the most recent 12 months OR

the degree of negligence for at least 25

percent of the S&S citations/orders issued

during the most recent 12 months is “‘high”

or “reckless disregard.”

(3) At least 0.5 elevated citations and orders

[issued under section 104(b); 104(d); 104(g);

or 107(a) of the Mine Act] issued per 100

inspection hours during the most recent 12

months.

(4) An Injury Severity Measure (SM) for the

mine that is greater than the overall Industry

SM for all mines in the same mine type and

classification over the most recent 12 months.

OR

(1) At least 100 S&S citations/orders issued

in the most recent 12 months.

(8) Mitigating circumstances. (2) At least 40 elevated citations and orders

[issued under section 104(b); 104(d); 104(g);

or 107(a) of the Mine Act] issued during the

most recent 12 months.

Section 104.2(a)(1) duplicates section 104.2(b)(1) and (2) but with less specificity. 

Sections 104.2(a)(2)-(6) duplicate sections 104.2(b) (2) and (3). Section 104.2(a)(7) essentially

duplicates section 104.2(b)(4) but again with less specificity.

The Secretary asserts the criteria are not duplicative relying entirely upon 104.2(a)(7) as

the basis for its purported exercise of discretion in deciding upon POV status. In doing so, he

36 FMSHRC Page 2072
cites the preamble to the regulation asserting “other factors listed” in the 104.2(a) criteria that are

supposedly not addressed in the specific pattern criteria. S. Br. at 26-27. The cited passage of

the preamble provides that these “other factors” are:

• Evidence of the mine operator’s lack of good faith in correcting

the problem that results in repeated S&S violations;

• Repeated S&S violations of a particular standard or standards

related to the same hazard;

• Knowing and willful S&S violations;

• Citations and orders issued in conjunction with an accident,

including orders under sections 103(j) and (k) of the Mine Act; and

• S&S violations of health and safety standards that contribute to

the cause of accidents and injuries.

78 Fed. Reg. at 5062.

Of course, a commonplace rule of construction is the “specific governs the general.” See

RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065 (2012) (“When the conduct

at issue falls within the scope of both provisions, the specific presumptively governs, whether or

not the specific provision also applies to some conduct that falls outside the general.”). 

Although not directly applicable here, the principle illuminates that the Secretary’s assertion that

MSHA exercises discretion based on generalized “other factors” fails to explain how MSHA

could apply section 104.2(a) criteria to find an operator not to be in POV status once an operator

meets the specific pattern criteria for POV status. Although MSHA lists “other factors” in the

preamble, the Secretary has not suggested how these factors are (1) not subsumed within the

specific criteria; (2) how or when, under MSHA’s procedures, MSHA reviews these factors to

possibly find that an operator that meets the specific pattern criteria for POV status actually is

not in POV status; or (3) when such criteria were examined with respect to Brody.

The first “other factor” suggested by MSHA is “lack of good faith.” Because the

operator has already met the specific criteria for POV status, it is impossible to see how a further

demonstration of the absence of good faith could cause MSHA to determine the operator is not

in POV status; it only adds fuel to the POV status fire. It cannot mean an exercise of “good

faith” because MSHA expressly limits a “good faith defense” to a request for mitigation under

the strictly limited basis of an MSHA-approved Corrective Action Program. MSHA’s intent not

to consider “good faith” is completely encompassed by the limited and specific mitigation

opportunities.

The second “other factor” is repeated S&S violations affecting the same standard or

hazard. Surely, the Secretary cannot be asserting seriously that it may find an operator that,

36 FMSHRC Page 2073
14 Although the revised rule has been in effect only since March 25, 2013, MSHA

conceded at oral argument that, to this point, all operators that have met the specific regulatory

criteria have been issued POV notices.

15 The majority cites two cases in support of treating the specific pattern criteria as a

statement of policy. Neither case supports the majority’s position. In Brock v. Cathedral Bluffs,

796 F.2d at 538, the Circuit Court emphasized the Secretary’s warning that nothing in the

Appendix altered production-operators’ responsibilities. Moreover, nothing whatsoever

constituted a binding norm on the agency to take or refrain from taking any action. Indeed, the

Court emphasized the substantive difference between suggestive words such as “may” and

determinative words such as “will.” Id. (In this case, the key word is “must”). Further, the

Court noted the Attorney General’s Manual on the APA and found that it had elaborated on it so

that “a general statement of policy, on the other hand, does not establish ‘a binding norm.’” Id. at

537.

As demonstrated above, the specific pattern criteria clearly establish a binding norm for

what does not constitute a Pattern of Violations as well as what does constitute a Pattern of

Violations. Am. Hosp. Ass’n, 834 F.2d at 1051, not only is not helpful to the majority, but

actually reinforces the need for notice and comment. The standards under review only asked that

HHS examine a greater share of operations in given medical areas. On the other hand, the Court

stated: “Were HHS to have inserted a new standard of review governing PRO scrutiny of a given

procedure, or to have inserted a presumption of invalidity when reviewing certain operations, its

(continued...)

under the numerical specific criteria, must have exceeded the national average for S&S

violations by at least two hundred and fifty percent is not in POV status because the S&S

violations are spread over a wide variety of standards or hazards. This is especially true as

MSHA states in the same section of the preamble that its “data and experience show that

violations of approval, training, or recordkeeping regulations, for example, can significantly and

substantially contribute to health or safety hazards, and may be a contributing cause of an

accident.” 78 Fed. Reg. at 5062-63. Thus, MSHA expanded the range of citations/orders

meriting POV status across the entire gamut of its regulations to training and recordkeeping. 

Finally, the third, fourth, and fifth “other factors” are duplicative of the specific criteria for

elevated citations/orders and the Injury Severity Measure of the specific pattern criteria.

It defies logic to credit the Secretary’s suggestion that a review of section 104.2(a)

factors, other than the separate and subsequent consideration of mitigation, could remove an

operator from POV status after a finding by MSHA that the operator meets the numerical

specific pattern. The case for POV status under section 104.2 can only be made stronger by the

so-called “other factors” because the specific criteria are minimum thresholds for POV status.14

We must apply here the District of Columbia Circuit Court’s caution related to another Federal

agency: “EPA’s claim to have been open to consideration of other factors does not make the

VHS model any less of a rule.” McLouth Steel Prod., 838 F.2d at 1322.15

36 FMSHRC Page 2074
15(...continued)

measures would surely require notice and comment, as well as close scrutiny to insure that it was

consistent with the agency’s statutory mandate. See, e.g., Pickus.” Id.

Indeed, the Court cited and distinguished the guidelines before it from the case of Pickus

v. U.S. Board of Parole, 507 F.2d at 1112–13, where, similarly to the Secretary’s actions in this

case, the parole board established “guidelines establishing specific factors for determining parole

eligibility that were “‘calculated to have a substantial effect on ultimate parole decisions.’” Am.

Hosp. Ass’n, 834 F.2d at 1046; see also Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014). 

Here, the actions by the Secretary established specific binding norms for operators that would

and would not be in POV status. Further, by deleting the prior section 104.3 and inserting the

specific binding pattern criteria established in section 104.2(b) and published on the website, the

Secretary effectuated a change in an existing rule thereby requiring notice and comment.

b. MSHA’s Procedures and Panel Review Accept the Specific Pattern

Criteria as Outcome Determinative

The Pattern of Violations (POV) Procedures Summary states that a District Manager is

only to “report facts relevant to whether there are mitigating circumstances that justify

postponing or not issuing a POV notification.” B. Mem. Supporting Appl. for Temp. Relief, Ex.

11, at 1. Nowhere is there so much as a hint that the District Manager with the most direct

knowledge and information related to the operator is asked for advice or information related to

the 104.2(a) or 104.2(b) pattern criteria, except the narrow and separate possibility for mitigation

unrelated to determining POV status in the first instance.

Again, MSHA’s own statement of procedures circumscribes such review by requiring

that the POV panel’s task is only to make a recommendation whether the mine “should be

excluded from POV notification or have their POV notification postponed due to mitigating

circumstances.” Id. at 1. So, when the procedures call for the POV panel to consider the

information provided by the District Manager, the call is for a review only of information related

to possible mitigation rather than the already met specific criteria for POV status.

In sum, after Brody fell within the specific pattern criteria, MSHA asked the District

Manager for information about, and only about, possible mitigation. The Panel then considered

the information supplied by the District Manager, rejected mitigation, and recommended

issuance of the POV notice. Thus, the process flowed smoothly, as intended, from specific

pattern criteria, to District Manager notice, to Panel review, to issuance of a POV notice.

POV status was determined by Brody’s failure under the specific pattern criteria. There

is no inkling, let alone evidence, that MSHA considered in any meaningful way factors under 30

C.F.R. § 104.2(a) that could only have strengthened the case for POV status. Operators failing

under the specific criteria are for all practical and legal purposes in POV status thereby facing a

POV Notice, subject only to a consideration of mitigation.

36 FMSHRC Page 2075
c. The Revised Regulation Converted “Screening” Criteria into “Pattern

Criteria Demonstrating Their Binding Effect.

The prior regulation contemplated and provided for a further actual review after

evaluation of what were then “Initial Screening Criteria” in section 104.2. Nothing in the

present regulation, procedures, or actions of MSHA demonstrates anything approaching a

discretionary analysis of pattern factors bearing on POV status after an operator meets the

specific pattern criteria. The prior regulation not only contemplated but also actually provided

for a discretionary review; the revised regulation does not. If an operator meets the specific

pattern criteria, it is in POV status subject only to a separate decision that it has recently

mitigated its history of violations by change of ownership or adoption of a previously MSHAapproved corrective action program.

Without the notice-and-comment period required by the APA, MSHA in its discretion

may change the numerical or durational (e.g. review every three, four, five, etc. months)

requirements of the specific pattern criteria. The specific pattern criteria are substantive. They

deserve and require public notice and comment.

II.

DUE PROCESS PROCEDURES

The parties focus much of their attention upon MSHA’s use of non-final citations/orders

for issuance of a POV Notice. Brody contends that “violations” as used in Section 104(e) of the

Mine Act may only reasonably mean final actions. Thus, according to Brody, MSHA’s use of

non-final citations/orders to issue a POV Notice fails to reflect proper consideration of the

change from the prior rule and violates the Constitution by depriving Brody of a pre-deprivation

hearing.

The Secretary contends that other sections of the Mine Act use the term “violations” to

mean non-final citations/orders. He further argues that using final actions for issuance of a POV

Notice is impractical and would frustrate the very safety purpose of the statute.

While the Secretary agrees that a valid POV Notice requires the Secretary to prove a

pattern of significant and substantial violations, he asserts that proof of final violations may

await a contest by an operator of a subsequently issued withdrawal order. Consequently, the

critical issue considered below is the point at which MSHA must prove final violations to sustain

a POV Notice – before or after issuance of the POV Notice and the resultant deprivation of

property rights.

A. Due Process

The first principle of due process is that “an individual be given an opportunity for a

hearing before he is deprived of any significant property interest, except for extraordinary

36 FMSHRC Page 2076
situations where some valid governmental interest is at stake that justifies postponing the hearing

until after the event.” Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis in original);

United States v. James Daniel Good Real Prop., 510 U.S. 43, 53 (1993) (“The right to prior

notice and a hearing is central to the Constitution’s command of due process.”). Due process

ordinarily requires an opportunity for that hearing before the deprivation at issue takes effect. 

E.g., Fuentes v. Shevin, 407 U.S. 67 (1972); Bell v. Burson, 402 U. S. 535 (1971); Wisconsin v.

Constantineau, 400 U.S. 433 (1971); Goldberg v. Kelly, 397 U.S. 254 (1970). This is the “root

requirement” of the due process clause. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542

(1985).

The Secretary concedes that Brody has a property interest in uninterrupted mining

activities. S. Br. at 15. That concession brings the due process clause into play. Boddie v.

Connecticut, 401 U.S. at 378-379. Of course, application of the due process clause is “intensely

practical.” Goss v. Lopez, 419 U.S. 565, 578 (1975). Whether a governmental interest justifies

postponing the hearing until after the deprivation is judged by application of the familiar three

factor test of Mathews v. Eldridge, 424 U.S. 319 (1976):

[I]dentification 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 requirement

would entail.

Id. at 334-35.

36 FMSHRC Page 2077
B. Private Interest that will be Affected

The parties diverge on the magnitude of effect a POV will have upon Brody. Brody

asserts that its right to operate its mine, including ownership rights and revenues constitute

significant property rights subject to due process protections. See James Daniel Good Real

Prop., 510 U.S. at 48-49. It further asserts that a POV Notice will cause a perpetual series of

temporary shut-downs of portions of its mines resulting in serious harm to its property interests. 

It cites Commission cases in which the severe consequences of a POV notice were noted. 

Aracoma Coal Co., 32 FMSHRC 1639, 1641 (Dec. 2010) (Opinion of Chairman Jordan

affirming ALJ’s decision); Rockhouse Energy Mining, 30 FMSHRC 1125, 1128 (Dec. 2008)

(ALJ).

The Secretary concedes that an operator has a property interest in continuing its mining

operations without withdrawing miners and that such interest is adversely affected by the POV

rule “because a withdrawal order reduces an operator’s control over its property and imposes

costs on the operator to regain control.” S. Br. at 15-16. However, the Secretary asserts Brody’s

“property rights” are weak because of the large number of citations that have been issued to it

and that, in any event, Brody exaggerates the disruption caused by a withdrawal order.

MSHA’s position is undercut by its own preamble to the final POV. In its analysis of

compliance costs, MSHA states: “Withdrawal orders issued under the final rule can stop

production until the condition has been abated. The threat of a withdrawal order provides a

strong incentive for mine operators to ensure that S&S violations do not recur.” 78 Fed. Reg. at

5070.

For this reason, all Commissioners agree that Brody “has a significant property interest in

continuing its mining operations without withdrawing miners.” Slip op. at 16.

C. The Safety Interest

Given the significant harm to property rights and the much preferred right to a predeprivation hearing, the constitutionality of MSHA’s failure to develop or utilize pre-deprivation

procedures for issuance of a POV notice rests in very large measure upon whether the Secretary

has identified circumstances that warrant bypassing the constitutionally-preferred predeprivation hearing. In due process cases, the Supreme Court focuses upon whether the

circumstance “falls under this emergency situation exception to the normal rule that due process

requires a hearing prior to deprivation of a property right” and is one of those “situations in

which swift action is necessary to protect the public health and safety.” Hodel v. Va. Surface

Mining & Reclamation Ass’n, 452 U.S. 264, 300-01 (1981).

In their work lives, miners have a right to a safe and healthful life, not a life shortened or

diminished by carelessness or violations of law by their employer. When there is an imminent

danger to the safety or health of a miner, immediate governmental intervention is required and

constitutionally justified. The Secretary cites the events at Upper Big Branch (UBB) mine in

36 FMSHRC Page 2078
16 Contrary to the majority’s contention (slip op. at 18 n.13), I do not characterize the

public interest in safety reflected in the POV rule as a “spasm of pain and fear.” I have only

cautioned that after natural or man-made disasters there is a natural tendency to overreact,

sometimes at the cost of constitutional rights and privileges. I would have thought the truth of

that observation obvious to any reader of American history of the 20th or 21st centuries, let

alone those of us who have lived through part of that history. There are over 10,000 S&S

citations/orders issued in the mining industry each year. See slip op. at 35 n.7. Each responds to

a situation allegedly creating a situation reasonably likely to result in a reasonably serious injury. 

Yet, I do not think any Commissioner would suggest that operators may be found presumptively

to have committed an S&S violation without a chance to defend. The alleged commission of

S&S violations does not justify deprivation of basic constitutional rights.

April 2010, a horrific tragedy claiming the lives of 29 miners. After such tragedy, there

inevitably arise a host of speculative “what if” questions. What if MSHA had issued UBB a

final POV notice rather than a Potential POV notice? What if MSHA’s computers had not failed

to identify UBB as a continuing violator that deserved a final POV Notice?

It does no disservice to these inevitable concerns to require a dispassionate review of

whether the POV rule is aimed at situations permitting MSHA to override the basic

constitutional right to pre-deprivation due process. Especially in the aftermath of tragedy, there

is a need for clear-eyed reflection lest we unnecessarily sacrifice basic rights to a spasm of pain

and fear. If section 104(e) were aimed at imminent safety and health hazards, then MSHA’s

failure to implement it for 37 years would be reason for a scathing rebuke of MSHA and a

galling monument to government ineptitude. In fact, an objective review demonstrates that

section 104(e) of the Mine Act is not aimed at immediate, current, or even recent hazards;

instead, it is a vaguely worded direction for an extreme remedy taken after lengthy deliberation

in order to change the long-term culture at those few mines that habitually disregard health and

safety standards in a significant and substantial way.16 MSHA has acknowledged:

[T]he majority of mine operators are conscientious about providing

a safe and healthful work environment for their miners. The POV

regulation is not directed at these mine operators. Consistent with

the legislative history, it is directed at those few operators who

have demonstrated a repeated disregard for the health and safety of

miners and the health and safety standards issued under the Mine

Act.

78 Fed. Reg. at 5058.

MSHA, therefore, has found that section 104(e) is not intended to deal with present or

recently past hazards. Instead, its remedial purpose is to change the culture of operators that are

habitually significant and substantial violators of mandatory safety and health rules and to serve

as a warning to any operator that may become lax in adhering to those standards. 

36 FMSHRC Page 2079
17 The majority euphemistically refers to this 14-month period as “recent compliance

history.” Slip op. at 21.

Pursuant to the binding specific pattern criteria, practically speaking, MSHA cannot issue

a POV Notice for at least 14 months from the beginning of the period during which a pattern of

violations is found to exist. It does not diminish the longer term importance of section 104(e) to

acknowledge that the POV rule does not deal with any recent mine hazard. A POV Notice is not

issued in response to day-to-day or even month-to-month violations.17

A partial summary of MSHA’s more immediate enforcement powers under the Mine Act

includes:

1. Section 103(a) – Requires “frequent” inspections; underground mines must be completely

inspected at least four times each year in their entirety and other mines must be inspected in their

entirety at least twice each year.

2. Section 103(i) – Requires spot inspections of methane liberating mines every five, ten, or

fifteen days depending upon amount of methane liberated.

3. Section 103(j) – Requires operators to notify MSHA of any accident and requires that such

notice be provided within 15 minutes for fatal accidents or an injury or entrapment of an

individual which has a reasonable potential to cause death. Section 110(a)(2) provides for a

penalty for failure to provide a required 15 minute notice of up to $65,000.

4. Section 104(a) – MSHA may issue citations to operators for any violation of any mandatory

health or safety standard, rule, order, or regulation and set a mandatory abatement period. 

Section 110(a)(1) provides for penalties up to $70,000 for violations depending upon penalty

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

5. Section 104(b) – MSHA may issue a withdrawal order requiring withdrawal of miners from

areas in which a citation has not been abated within the time specified by MSHA. Section

110(b)(1) provides for a penalty of up to $7,500 for each day of failed abatement.

6. Section 104(d)(1) – If, during an inspection, an inspector finds a S&S violation of a 

mandatory safety or health standard by an unwarrantable failure and during that same inspection

or any other inspection within 90 days finds another unwarrantable failure, the inspector shall

issue a withdrawal order for the area affected by the violation. Section 110(a)(3)(A) provides for

a minimum penalty of $2,000 for a 104(d)(1) violation.

7. Section 104(d)(2) – If an inspector issues a withdrawal order under 104(d)(1), a withdrawal

order shall promptly be issued upon a finding in any subsequent inspection of the existence in

such mine of violations similar to those that resulted in the issuance of the withdrawal order

under paragraph section 104(d)(1) until such time as an inspection of such mine discloses no

36 FMSHRC Page 2080
similar violations. Section 110(a)(3)(B) provides for a minimum penalty of $4,000 for a

104(d)(2) violation.

8. Section 107 – An inspector shall issue a withdrawal order if the inspector finds an imminent

danger – that is, any condition or practice which could reasonably be expected to cause death or

serious physical harm before such condition or practice can be abated results in a withdrawal

order.

9. Section 108 – Provides for an injunction action in Federal court as a result of various actions

by an operator, including a violation of, or failure to comply with, an order or decision. 

10. Section 110(b)(2) – MSHA may seek a penalty of up to $242,000 for any “flagrant”

violation of the Act.

11. Section 110(c), (d), (e), (f), (g), (h) – These sections provide circumstances under which

civil and criminal penalties may be imposed upon officers, directors, agents of a corporate

operator, and others for violations.

12. Higher penalties under the Mine Improvement and New Emergency Response Act of 2006

(“MINER Act”) – The average penalty has increased substantially since passage of the MINER

Act. Further, penalty points are assessed on the basis of both the history of violations and repeat

violations. See 30 C.F.R. § 100.3. Therefore, the sort of conduct that may cause POV trouble

for an operator far more quickly results in greatly enhanced penalties.

13. Impact Inspections – In April 2010, MSHA began to conduct especially intensive

inspections, called “impact” inspections, at mines it determines merit increased attention due to

such matters as numerous violations or withdrawal orders, failures in plan compliance,

inadequate examinations, roof issues, and accidents, injuries, or illnesses. MSHA Press Release

No. 14-1376-NAT, July 24, 2014.

Impact inspections deserve particular attention with respect to the interplay with the POV

rule. Because MSHA tracks violations by operators on a monthly basis, it flags operators with

actually recent disturbing violation trends for impact inspections. As of July 2014, MSHA had

conducted 780 intensive impact inspections resulting in 12,627 citations, 1,170 orders, and 54

safeguards. Id.

The enhanced penalty amounts together with the intensity of impact inspections, means that 

MSHA can and does deal immediately with recalcitrant operators in a very real and targeted

manner. Indeed, the Assistant Secretary for Mine Safety and Health has stated recently that “[a]

review of mines receiving impact inspections between September, 2010 and September 30, 2013

that have had at least one follow-up inspection also shows that these inspections have made a real 

difference.” Remarks of Joseph A. Main, Assistant Sec’y of Labor for MSHA, NSSGA Meeting, 

March 5, 2014; https://www.msha.gov/MEDIA/SPEECHES/2014/NSSGAremarksfinal.pdf.

36 FMSHRC Page 2081
18 In this respect, the majority finds the property interest and the safety interest to be in

equipoise thereby allowing it to assert that Brody’s due process rights depend solely on its

analysis of the adequacy of pre- and post-deprivation procedures. The majority also incorrectly

has analogized the deprivation of any pre-hearing procedure under the Secretary’s POV rule with

the issuance of withdrawal orders under section 104(d). The sections are not similar in any

manner relevant to due process rights. First, section 104(d) deals with a chain of immediate

“unwarrantable failures” in which at the very point of issuance an operator must have

demonstrated “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack

of reasonable care.” Emery Mining Corp., 9 FMSHRC 1997, 2003-04 (Dec. 1987); see also

Buck Creek Coal, Inc., 52 F.3d 133, 136 (7th Cir. 1995). Therefore, this is a situation in which

the allegation of immediate operator faults rises to a high level. Further, the chain of withdrawal

orders may be broken by avoiding for the requisite period any additional unwarrantable failures. 

For section 104(e), however, the operator must go through an entire mine inspection without an

alleged S&S violation rather than an unwarrantable failure. 

The working conditions at mines are by their very nature difficult and hazardous. 

Tragically, fatalities and injuries continue to occur despite the best efforts of MSHA, operators,

and miners. However, there is a significant array of regulatory weapons at MSHA’s disposal to

deal with current and recent hazards. Section 104(e)’s purpose is different; it is a long-term

weapon aimed at culture rather than specific hazards.

D. Risk of Erroneous Deprivation and Value of Additional Safeguards

Having recognized the “significant property interest” at stake for Brody and, realistically

knowing that the POV rule is not aimed at circumstances of immediate or even current harm, the

only conceivable ground upon which to base a denial of a fundamental constitutional right is that

there is no risk of erroneous deprivation so the due process rights are insignificant.18

The Mathews v. Eldridge test is a balancing test of the three factors. However,

“balancing” does not mean assigning a 33.33% share to each of the three factors. The factors

must be balanced holistically. The potential for immediate severe harm to the public interest

may play a greater role than the other two factors. Conversely, the seriousness of the property

rights involved may affect the view taken of the other elements, especially if the contemplated

government action is not in response to immediate or recent circumstances.

That understanding is important here because the property rights of Brody and the

“safety” element are not in equipoise. While the Secretary now disputes the high value of

Brody’s property right to continued operation of its mine, as we have seen, even MSHA in the

preamble to the rule asserted that a POV Notice is “severe.” Indeed, there is little challenge to

Brody’s assertion that issuance of POV Notice may result in the demise of an operation.

36 FMSHRC Page 2082
19 The majority, much as its wrongfully characterizes my observation of the need to

dispassionately consider the effect of government action upon constitutional rights after a

disaster lest we let the disaster override constitutional rights, also wrongly seizes upon the word

“urgency” in this sentence as if it is used in the sense of “importance” or “significant concern.” 

Slip op. at 18. Obviously, the point is that the POV rule is not dealing with preventing or

remedying an immediate danger. Congress found that dealing with operators engaged in a longterm ongoing pattern of numerous S&S violations is important, and it is. However, it is not a

situation that requires the government to forego elementary and most important due process

rights.

Further, the POV rule does not address a situation of urgency or even recency.19 The

POV rule deals with long-term conduct rather than any immediate, current, or even recent

violation or danger. As it takes more than a year to reach the point of considering a POV Notice,

there is no immediate safety concern counterbalancing the destruction of property interest. 

Therefore, the balance between property rights and an immediate public interest tilts very

sharply toward the property rights affected by a POV Notice.

Because a pre-deprivation hearing is constitutionally preferred, cases in which only postdeprivation procedures are found sufficient generally involve a threat of an imminent or

immediate harm to an important public or governmental interest. This element of imminent

harm is found in the cases cited by the majority. In Ewing v. Mytinger & Casselbery, Inc., 339

U.S. 594 (1950), there was an immediate danger to public safety through the imminent

distribution of mislabeled drugs. In Mackey v. Montrym, 443 U.S. 1 (1979), the Court found an

immediacy to the danger posed by drunk drivers. Finally, Hodel, 452 U.S. 264, involved the

likelihood of significant, imminent mining disasters.

In Hodel, for example, the Court affirmed that “[o]ur cases have indicated that due

process ordinarily requires an opportunity for ‘some kind of hearing’ prior to the deprivation of a

significant property interest.” 452 U.S. at 299. However, the Court found the emergency

situation of an imminent mine disaster justified a post-deprivation hearing summary

administrative action stating: “[t]he question then, is whether the issuance of immediate

cessation orders under § 521(a) falls under this emergency situation exception to the normal rule

that due process requires a hearing prior to deprivation of a property right.” Id. at 300. Citing

Mytinger, the Court found an immediate cessation order responded “to situations in which swift

action is necessary to protect the public health and safety. This is precisely the type of

emergency situation in which this Court has found summary administrative action justified.” Id.

at 301.

Under the case law, therefore, the application of the factor of risk of erroneous

deprivation of property rights in this case arises in the context that (1) due process ordinarily

requiring a pre-deprivation hearing, (2) issuance of a POV Notice will be highly destructive of

property rights, and (3) the POV Rule applies after a lengthy analysis to long-term situations

and, thus, is not the type of situation justifying summary administrative procedures.

36 FMSHRC Page 2083
20 This is not a suggestion that the only form of pre-deprivation procedures satisfying due

process rights would be litigation of each citation/order through to a final non-appealable order. 

The Secretary, acting through MSHA, should have considered a host of alternatives such as a

pre-issuance notice sufficient to allow an operator to know the specific allegations upon which

the POV Notice was based and for expedited review within a time frame and to an extent

reasonably gauged as adequate from a constitutional perspective.

21 The Secretary’s suggestion for such challenges may result in greatly increased

litigation and fewer settlements.

If the Secretary’s definition of “pattern of violations” is sustained, which has not yet

occurred, and if the Secretary is able to establish a “recognizable pattern” on the basis of two or

three violations, which also has not been confirmed, it would seem likely that MSHA could cull

a small number of provable S&S violations out of dozens or hundreds of unproven

citations/orders. However, allegations of violations and citations are not based upon objective

tests. They are issued by inspectors with all the possibilities for errors, misperceptions, and

human emotions. Further, the Secretary agrees that a substantial number (perhaps 19%) are set

aside in litigation.

Because the POV rule has been issued so long after passage of the Mine Act and the

remedy provided by it is so severe, there may be an inclination that it is so “important” that it

should benefit from some sort of special analysis or constitutional blessing. From a

constitutional law perspective, the POV rule does not deal with an imminent, current, or recent

hazard but rather longer term issues and, thus, does not justify deprivation of an owner’s vital

property interests without some kind of a pre-deprivation hearing.20

Under the POV rule there simply are no pre-deprivation procedures. An operator may

contest individual S&S citations/order but it has no way of knowing whether those

citations/orders would fit into the vaguely-defined notion of a “pattern of violations.”21 The

Secretary contends that operators may request a conference with a field office supervisor but

fails to mention that Brody requested five Part 100 conferences with District Managers involving

22 S&S citations/orders and a grand total of zero were granted. B. Br. at 3. Further, a meeting

may be held with a District Manager before issuance of a POV Notice but only “for the purpose

of correcting any discrepancies. 78 Fed. Reg. at 5061.

The on-line monitoring tool is a useful tracking tool for which MSHA deserves credit. 

However, issuance of S&S citations/orders are entirely within the discretion of MSHA

inspectors and, especially in an era of targeted impact inspections based upon computerized

tracking, it does not satisfy due process to assert that an operator may have access to tool that, if

used, may help avoid receiving a POV Notice. The right to a hearing before imposition of a

severe penalty in a non-emergency context is not satisfied by an asserted opportunity to selfpolice oneself to foresee and avoid violations of governmental regulations.

36 FMSHRC Page 2084
22 MSHA can and does work on a POV case before making a “final” decision. Here, for

example, the Panel Memorandum recommending that a POV Notice be issued is dated October

12. S. Mem. Supporting Opp’n to Appl. for Temp. Relief, Ex. A. The POV Notice was sent on

October 24 listing 54 citations/orders. Notice No. 7219154. Obviously, therefore, MSHA was

culling citations/orders for use and preparing the POV Notice for delivery before “final”

approval.

23 MSHA cannot seek an expedited hearing until a citation/order is contested and

operators do not need to contest a citation/order until a penalty is assessed. However, as with all

other aspects of the regulatory process, the timing of penalty assessments is wholly within the

control of MSHA.

Finally, the extent of citations/orders/violations asserted in a POV Notice is totally within

the control of MSHA. The time it will take to make final determinations upon the

citations/orders that must be proven to sustain a POV Notice ultimately depends upon the type

and number of citations/orders upon which MSHA decides to base a POV Notice. MSHA has

the same right to seek expedited hearings as operators. The Commission’s procedural rules

allow “any party” to file a motion for expedition of proceedings. 29 C.F.R. § 2700.52(a). 

Further, once an expedited hearing is requested, the length of time necessary to conduct such

hearing does not depend upon which party requested it.22

MSHA uses computerized tracking capability of citations/orders for impact inspections. 

Therefore, MSHA may determine to seek expedited hearings on citations/orders issued to an

operator approaching POV status under the specific pattern criteria.23 Rather than filing a final

POV Notice approximately 14 months after the beginning of the analysis period without any predeprivation due process procedure, MSHA could have proceeded promptly to an expedited

hearing on citations/orders forming the basis for its POV Notice as it monitors its self-built

tracking software.

Here, Brody met the specific pattern criteria on the basis of 253 citations/orders. S.

Mem. Supporting Opp’n to Appl. for Temp. Relief, Ex. A at 9. The POV Notice asserted 54

violations in four categories, the smallest of which was seven citations. Notice No. 7219154. 

The Secretary asserts that under its definition of a POV, a hearing on those seven citations could

suffice to prove a pattern of violations.

If MSHA had chosen to base the POV Notice on seven citations as it claims it could, it

could have also expeditiously obtained a decision from an Administrative Law Judge on those

seven citations. Even if MSHA concluded that it needed to cite more citations either for fear of

rejection of its definition of a POV or as a matter of litigation strategy, the decision was entirely

within MSHA’s hands. It is ironic for the Secretary to say with one breath that it may prove a

POV through proof of seven (or fewer) citations/order but in the next breath say that expedited

hearings would take too long to provide the constitutionally required hearing. By deciding upon

36 FMSHRC Page 2085
the number of citations/orders/violations necessary to prove the existence of a POV, MSHA

determines the amount of time that will be required to prove its case and MSHA may seek

expedited hearings at any time.

Even when the private party’s odds of prevailing are small, the due process clause

commands respect for constitutional rights. Observance of due process requirement for predeprivation hearings does not just protect property interests. In Joint Anti-Fascist Refugee

Committee v. McGrath, 341 U.S. 123 (1951), Justice Frankfurter reflected upon due process as

bedrock upon which our democracy is built:

“[D]ue process,” unlike some legal rules, is not a technical

conception addressed with a fixed content unrelated to time, place

and circumstances. Expressing, as it does in its ultimate analysis,

respect enforced by law for that feeling of just treatment which has

been evolved through centuries of Anglo-American constitutional

history and civilization, “due process” cannot be imprisoned

within the treacherous limits of any formula. Representing a

profound attitude of fairness between man and man, and more

particularly between the individual and government, “due process”

is compounded of history, reason, the past course of decisions, and

stout confidence in the strength of the democratic faith which we

profess.

Id. at 162-163.

Justice Frankfurter’s words have not been lost. The Supreme Court often restates the

principle that the due process clause not only protects the property interests of citizens, it also

supports the conveyance of a feeling that the government is fair and just; that it does not take

property at will; and that all the rights of citizens are respected. See Carey v. Piphus, 435 U.S.

247, 266-267 (1978); Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980); Nelson v. Adams, 529

U.S. 460, 468 & n.2 (2000).

From these considerations it is clear that: (1) 30 C.F.R. § 104 is an adjunct to a host of

other powerful and immediate enforcement provisions dealing with current or recent alleged

violations; (2) it minimally takes14 months to implement a POV Notice from the beginning of

the relevant time period; (3) the number of citations/orders/violations supporting prosecution is

controlled exclusively by MSHA; and (4) MSHA may initiate hearing processes, with expedited

consideration, even before the end of the 12-month review period. Thus MSHA, rather than the

operator, has virtually complete control over the timing of, and time required for, a hearing on

citations/orders/violations underlying a POV Notice.

Due process is a flexible concept and may be tailored to the circumstances of the specific

situation. Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972). During rulemaking MSHA could

and should have considered differing possibilities for affording some form of pre-deprivation

36 FMSHRC Page 2086
impartial judicial type review of alleged violations upon which a POV Notice is to be based. 

This is a matter upon which MSHA should have reflected and acted seriously before dispensing

with vital constitutional rights.

III.

CONCLUSION

Congress and Federal courts wisely have found that notice of and the opportunity to

comment upon rules binding a Federal agency or members of the public are the foundation of

fair and transparent government. In its rulemaking at issue here, MSHA bound itself and

members of the public to arbitrary numerical and specific pattern criteria. In the name of

“flexibility” it has deprived the public of any opportunity to comment upon such criteria. That is

an unlawful failure to obey the Administrative Procedure Act and should be rejected.

Separately, the Secretary defines a pattern of violations to mean a minimal number of

proven violations and, acting through MSHA, controls every aspect of the proceedings upon

which issuance of a POV Notice is based from initial inspection through monitoring of violations

to deciding upon the number and timing of prosecution of citations/orders. Further, MSHA has,

and aggressively uses, a broad and forceful array of enforcement weapons to deal with violations

likely to cause injury and operators that commit such violations. Under these circumstances, the

conditions necessary to warrant denial of some form of a pre-deprivation due process do not

exist.

I would vacate the judge’s decision and not permit the Secretary to proceed with POV

notices until he conducts a rulemaking consistent with this opinion.

William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 2087
36 FMSHRC Page 2087 A

APPENDIX A
36 FMSHRC Page 2087 B1

APPENDIX B
36 FMSHRC Page 2087 B2
36 FMSHRC Page 2087 C1

APPENDIX C
36 FMSHRC Page 2087 C2
36 FMSHRC Page 2087 D
1

 Section 105(c)(1), 30 U.S.C. § 815(c)(1), provides in pertinent part:

No person shall discharge or in any manner discriminate against or

cause to be discharged or cause discrimination against or otherwise

interfere with the exercise of the statutory rights of any miner . . .

because of the exercise by such miner . . . on behalf of himself or

others of any statutory right afforded by this [Act].

2

 On June 6, 2013, the Judge issued an amended decision to correct a clerical error.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

UNITED MINE WORKERS OF AMERICA :

 (UMWA), on behalf of MARK A. FRANKS :

 :

v. : PENN 2012-250-D

 :

EMERALD COAL RESOURCES, LP :

 :

UNITED MINE WORKERS OF AMERICA :

 (UMWA), on behalf of RONALD M. HOY :

 :

v. : PENN 2012-251-D

 :

EMERALD COAL RESOURCES, LP :

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

DECISION

These proceedings are before the Commission based on complaints of discrimination

filed by the United Mine Workers of America (“UMWA”) on behalf of Mark A. Franks and

Ronald M. Hoy pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (2012) (“Mine Act”). 

On June 3, 2013, an Administrative Law Judge issued a decision concluding that Franks

and Hoy had demonstrated by a preponderance of the evidence that they were unlawfully

discriminated against by Emerald Coal Resources, LP as a result of their participation in

activities protected by section 105(c)(1) of the Mine Act.1

 35 FMSHRC 1696 (June 2013)

(ALJ).2

 The Judge further ordered Emerald to pay Mark Franks and Ronald Hoy back pay in the

amounts specified in her order. Id. at 1707. Emerald filed a petition for discretionary review of

the Judge’s decision, which the Commission granted. 

36 FMSHRC Page 2088

August 29, 2014
As set forth below, a majority of Commissioners affirms the Judge’s decision that

violations of section 105(c)(1) occurred. Commissioners Young and Cohen would affirm the

decision based on the support of substantial evidence in the record. Chairman Jordan and

Commissioner Nakamura would affirm the decision in result on the basis that the evidence

supports a finding of interference with the miners’ protected rights under the Act. Commissioner

Althen concludes that the operator did not violate section 105(c)(1).

Opinion of Commissioners Young and Cohen, affirming the Judge’s decision:

On review, Emerald argues that the Judge’s decision contains errors of fact and law. 

Emerald’s arguments primarily fall into two distinct categories. First, Emerald contends that the

Judge erred in concluding that the activities of Franks and Hoy, taken as a whole, were protected

by the Mine Act. Second, Emerald alleges that the Judge erred in determining that its asserted

business reason was pretextual and not legitimate. 

In response, Franks and Hoy contend that the Judge’s decision was correct and that her

findings are supported by substantial evidence in the record. For the reasons that follow, 

we agree with the complainants and would affirm the decision of the Judge.

I.

Factual and Procedural Background

A. Franks and Hoy complained of unsafe practices at the mine to their safety

committeeman.

This decision concerns activities at Emerald’s Mine No. 1 from July 2011 through

November 2011. Mine No. 1 is an underground coal mine located in Greene County,

Pennsylvania. Jt. Stip. 1. During this period, Franks and Hoy were each employed as beltmen at

the mine. Jt. Stips. 3-7. 

On two separate occasions in August 2011, Franks and Hoy complained of unsafe

practices at the mine to David Moore, a representative of the UMWA safety committee. Tr. 24-

25, 53, 55-56. Specifically, on or around August 17, 2011, and on or around August 29, 2011,

the miners complained that they suspected that one or more firebosses had failed to walk the

length of the beltline while they were performing a preshift examination. Tr. 24-25, 53, 55-56. 

Hoy testified that he complained about an examination conducted on July 15, 2011. 

Tr. 35; C. Ex. 1. Franks testified that he complained about an examination conducted on July 27,

2011. Tr. 61. Franks also testified that he identified a specific fireboss to Moore. Tr. 47, 49. 

The Judge concluded that Franks and Hoy testified credibly. 35 FMSHRC at 1699. 

B. The MSHA Investigation

On or about September 22, 2011, an anonymous complaint was filed with the Department

of Labor’s Mine Safety and Health Administration (“MSHA”) pursuant to section 103(g) of the

36 FMSHRC Page 2089
3

 Section 103(g)(1) provides a miner the “right to obtain an immediate inspection by

giving notice to the Secretary” if he “has reasonable grounds to believe that a violation of [the

Mine Act] or a mandatory health or safety standard exists.” 30 U.S.C. § 813(g)(1). Section

103(g)(1) further provides that “[t]he name of the person giving such notice and the names of

individual miners referred to therein shall not appear in such copy or notification.”

4

 The Complaint specifically alleged: “(1) Emerald Mine not being inspected properly by

State or MSHA; (2) Beltlines look like a powder keg; (3) C3 longwall belt, E-district belts very

dirty with coal; (4) North Main belt is only 12 blocks long and fireboss wrote up 40 bad rollers

and company did nothing; (5) Belt firebosses ride 4 wheelers and only stop at mandoors to check

belts; (6) Slope belt dirty.” Jt. Ex. 1.

Mine Act.3

 Jt. Stip. 12. The complaint contained six allegations, one of which was an allegation

that firebosses were not conducting adequate inspections of the beltline.4 35 FMSHRC at 1697-

98; Jt. Ex. 1. Inspectors from MSHA investigated the allegations in the complaint. In the

process they took statements from approximately 34 miners and supervisory personnel, including

Franks and Hoy. Jt. Stips. 13-15, 29, 31-33, 38.

On September 28, 2011, MSHA inspector Thomas Bochna arrived at the mine to

continue the investigation into the section 103(g) complaint. Jt. Stip. 13. Inspector Bochna

approached Franks and asked him if he had ever observed a fireboss “[fail to] perform[] proper

preshift conveyor belt examinations.” Jt. Stip. 14. Franks responded that he was aware of an

incident, the fireboss responsible, and the date on which it occurred. Id. 

On that same shift, Franks was called out of the mine and into a meeting which included:

MSHA inspectors Bochna and David Severini; Emerald compliance manager, William Schifko;

Emerald management trainee, Adam Strimer; the local UMWA president, Anthony Swetz; and a

miner’s representative, Bruce Plaski. Jt. Stips. 15, 16. At the meeting, inspector Severini

informed the group that Franks had spoken to inspector Bochna earlier that day, and that Franks

was aware of a specific incident of a failure to perform an adequate examination by a fireboss. 

Jt. Stips. 17, 19, 20. Franks refused his request to name the fireboss or the date on which the

allegedly inadequate examination occurred. Jt. Stip. 22. 

Later that day, Franks was called back into a meeting with the MSHA inspectors, the

UMWA local president, Emerald management, and a miner’s representative. Jt. Stip. 24. 

Inspector Severini again asked Franks to name the fireboss; Franks again declined to disclose

any details. Id. 

On September 29, 2011, Franks met with inspector Bochna, compliance manager

Schifko, and local president Swetz. Jt. Stip. 26, 27. Franks stated that he had written the name

of the fireboss in his personal calendar, along with the date of the unperformed exam. Jt. Stip.

27. Franks stated that he would not produce these written records; he did not consider it “worth

it” for him to do so. Id. 

36 FMSHRC Page 2090
On October 4, 2011, Hoy was called into Schifko’s office for a meeting. Jt. Stip. 29. 

The meeting included MSHA inspectors Severini and Anthony Setaro, Schifko, Strimer, UMWA

member Donald Cogar, and UMWA committeeman Douglas Scott. Jt. Stip. 33. Hoy declined a

request to provide the name of the fireboss who failed to conduct a proper preshift conveyor belt

examination. Jt. Stip. 34. Hoy was asked to name the foreman who he had heard complaining

about inadequate conveyor belt preshift examinations. Jt. Stip. 35. Hoy also refused to disclose

this information. Id. Hoy was also asked to provide written records, contained in his personal

calendar of the names of firebosses who had failed to conduct preshift conveyor belt

examinations and the corresponding dates. Jt. Stip. 36. Hoy declined to disclose this

information as well. Id.

On October 4, 2011, MSHA concluded its investigation into the allegations in the

anonymous complaint. Jt. Stip. 37; Jt. Ex. 2. MSHA issued seven citations to Emerald, but did

not find evidence that firebosses had failed to perform adequate examinations of the belt line. Jt.

Stip. 38; Jt. Ex. 2. The citations were issued in response to three of the allegations contained in

the section 103(g) complaint, specifically: “(2) Beltlines look like a powder kegs, (3) C3

longwall belt, E-district belts very dirty with coal,” and “(6) Slope belt dirty.” Jt. Ex. 2. 

C. Emerald’s Investigation

After MSHA completed its investigation, Emerald began its own investigation of the

allegations that were made in the anonymous complaint. Jt. Stip. 39. 

On October 20, 2011, Emerald human resources supervisor Christine Hayhurst, UMWA

local president Swetz, and Committeeman Scott met with Franks and then with Hoy. Jt. Stips.

40; 42. The miners refused to provide any further details or produce written records. Jt. Stips.

40-42. On October 24, 2011, Franks met with Hayhurst, Schifko and Swetz and declined to

provide any further information. Jt. Stip. 43. 

On November 9, 2011, Franks and Hoy each met with Emerald’s safety manager, Joseph

Pervola, Hayhurst, and committeeman David Baer. Jt. Stips. 45, 48. Again, Franks and Hoy

both declined to name a fireboss or give the date of the unperformed examination. Jt. Stips. 45,

48. Franks and Hoy were subsequently suspended from work without pay for seven days. Jt.

Stips. 46, 49. Their suspension letters state that the suspensions were the result of a “failure to

provide information [] concerning serious allegations of safety violations.” Jt. Stip. 46; Jt. Exs.

3, 4.

Franks and Hoy contend that they refused to provide any information during the

investigations for essentially two reasons: (1) they had previously provided the information to

David Moore, the UMWA safety representative, pursuant to mine policy and (2) they believe

that because MSHA was conducting an investigation pursuant to section 103(g), they were not

required to disclose the names of miners to management. Tr. 18-22, 32-33, 38-39, 47, 50, 58.

36 FMSHRC Page 2091
5

 Section 105(c)(3) permits a miner to file a discrimination claim on his own once the

Secretary of Labor decides that he will not pursue a case on the miner’s behalf. See 30 U.S.C. 

§ 815(c)(3).

D. Franks and Hoy’s Complaint of Discrimination

On November 10, 2011, Franks and Hoy filed separate discrimination complaints with

MSHA alleging that they had been “targeted by” Emerald and “singled out” “for participating

and cooperating in a section 103(g) complaint investigation conducted by MSHA.” 35

FMSHRC at 1697; Compl. of Discrim., Ex. A at 2, 4. MSHA investigated the allegations and

concluded that the “facts disclosed during the investigation do not constitute a violation of

Section 105(c).” Compl. of Discrim., Ex. B. 

On April 23, 2012, pursuant to section 105(c)(3) of the Mine Act, the complainants,

through the UMWA, filed a complaint of discrimination with the Commission alleging that

Emerald interfered with their right to provide information to MSHA during the course of its

investigation and discriminated against them for their exercise of that right.5

 Compl. of Discrim.

at 8. The miners sought lost wages including regular, overtime, and holiday pay, and to have

any reference to this matter removed from their personnel files. Id. at 10.

E. The Judge’s Decision

On June 6, 2013, an Administrative Law Judge issued a decision concluding that Franks

and Hoy had demonstrated a prima facie case of discrimination, which Emerald failed to rebut

with a credible business reason. 35 FMSHRC at 1703-07. The Judge determined that Franks

and Hoy engaged in protected activities when: (1) they made multiple safety complaints to a

member of the safety committee; (2) they provided information to MSHA during the course of

its investigation; and (3) they provided information to Emerald during the operator’s follow-up

investigation regarding the allegations in the section 103(g) complaint. Id. at 1703. The Judge

held that the seven-day suspension was an adverse action. Id. 

Furthermore, the Judge concluded that the evidence demonstrated that Franks and Hoy

were treated with hostility by Emerald as a result of their protected activities. Id. at 1704. In

particular, Emerald management personnel repeatedly called both miners into the office and

demanded that they name a fireboss, even though Franks and Hoy previously provided

identifying information to a representative of the UMWA safety committee, pursuant to accepted

mine policy. Id. The Judge concluded that because Moore investigated a complaint about a

fireboss, and informed Schifko of the exact shift he had investigated, Emerald management was

aware of the identity of an accused fireboss. Id. Despite Moore’s involvement, the Judge found

that Emerald never asked Moore for the name of a fireboss during its investigations. Id. In

addition, the Judge noted that Hoy stated that a co-worker had warned him that he “had a big

target on [his] back for talking to the inspectors,” demonstrating hostility. Id (citing Tr. 33). 

The Judge stated that “[t]he miners utilized the avenue open to them, making a complaint

through a safety representative, to avoid the very thing that happened to them, constant

36 FMSHRC Page 2092
harassment and finally retaliation for expressing concern over what they believed to be a

fireboss’ failure to carry out his duties.” Id. at 1704-05.

The Judge rejected Emerald’s argument that it suspended the miners because they refused

to name a fireboss responsible for an inadequate examination, stating that Emerald had presented

no evidence of a policy that required personnel to report unsafe conditions or practices directly

to mine management. Id. at 1705-06. Instead, it was accepted practice at the mine for miners to

report safety hazards either to representatives of the union safety committee or to mine

management. Id. at 1706. The Judge additionally found that compliance manager Schifko was

aware of the identity of the fireboss who allegedly failed to perform a preshift examination. Id.

The Judge concluded that “[b]ased upon all of these facts, I cannot agree that Emerald

has demonstrated a legitimate business purpose for the discipline.” Id. Instead, the Judge

determined that Emerald’s stated business purpose was a pretext to punish Franks and Hoy for

their protected activities. Id.

II. 

Disposition

Section 105(c)(1) of the Mine Act provides: 

No person shall discharge or in any manner discriminate against or

cause to be discharged or cause discrimination against or otherwise

interfere with the exercise of the statutory rights of any miner . . .

because such miner . . . has filed or made a complaint under or

related to this Act, including a complaint notifying the operator or

the operator’s agent, or the representative of the miners at the coal

or other mine of an alleged danger or safety or health violation in a

coal or other mine, or. . . because of the exercise by such miner, 

representative of miners or applicant for employment on behalf of

himself or others of any statutory right afforded by this Act.

30 U.S.C. 815(c)(1).

A complainant alleging discrimination prohibited by the Mine Act establishes a prima

facie case by presenting evidence sufficient to support a conclusion that the individual engaged

in protected activity, that there was an adverse action, and that the adverse action complained of

was motivated in any part by that activity. See Turner v. Nat’l Cement Co. of California, 

33 FMSHRC 1059, 1064 (May 2011); Sec’y of Labor on behalf of Pasula v. Consol. Coal Co., 

2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds 663 F.2d 1211 (3d Cir. 1981); Sec’y

of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). 

The operator may rebut the prima facie case by showing either that no protected activity

occurred or that the adverse action was in no part motivated by protected activity. See Robinette,

3 FMSHRC at 818 n.20. If the operator cannot rebut the prima facie case in this manner, it

36 FMSHRC Page 2093
6

 The Commission applies the substantial evidence test when reviewing a Judge’s

factual determinations. 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., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 

nevertheless may defend affirmatively by proving that it was also motivated by the miner’s

unprotected activity and would have taken the adverse action for the unprotected activity alone. 

See id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp. v.

FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying Pasula-Robinette test). 

A. Prima Facie Case

1. Protected Activity

a. Complaints to Moore and Participation in Investigations

The Judge found that Franks and Hoy each complained to David Moore, a representative

of the UMWA safety committee, about inadequate preshift examinations of the beltline. 35

FMSHRC at 1699-1700. Complaints of an alleged safety or health violation to “the operator or

the operator’s agent, or the representative of the miners . . .” are protected by section 105(c)(1)

of the Mine Act. 30 U.S.C. § 815(c)(1) (emphasis added). We conclude that substantial

evidence in the record supports the Judge’s finding that Franks and Hoy engaged in protected

activities.6 Both Franks and Hoy testified that they met with Moore to complain about

firebosses on 

August 17, 2011, and August 29, 2011. Tr. 24-25, 53, 55-56. David Baer, a miner, corroborated

their testimony, testifying that he observed both Franks and Hoy meet with Moore and overheard

their conversations on both occasions. Tr. 63-65. 

The Judge noted that Moore’s testimony conflicted with Franks’, Hoy’s, and Baer’s

recollection. 35 FMSHRC at 1699. She found Moore’s testimony to be “opaque and evasive.” 

Id. Instead, the Judge credited the testimony of Franks and Hoy, corroborated by Baer. Id. She

concluded that even if Franks and Hoy did not remember the exact date of the meetings

correctly, it did not change her assessment. Id. at 1700. It is well settled that a Judge’s

credibility determinations are entitled to great weight and may not be overturned lightly. Consol.

Coal Co., 35 FMSHRC 2326, 2329 (Aug. 2013) (citations omitted).

 Emerald contends that neither Franks nor Hoy provided Moore with enough information

to discover the identity of a fireboss who had been responsible for the allegedly inadequate

preshift examinations. E. Br. at 18-22. We find this contention to be without merit. In fact,

Emerald’s argument is directly contradicted by Moore’s own testimony. Moore testified, “I

knew who the fireboss was [Hoy] was talking about . . . [Hoy] gave a specific date. I knew the

date he recalled because I already investigated it, so I knew who he was talking about.” Tr. 129. 

Moore said he investigated the allegation that firebosses were signing the date board without

conducting an adequate examination, by checking the date board to see if it had been signed. 

36 FMSHRC Page 2094
Tr. 123-25; 30 C.F.R. § 75.360(f). 

Having provided the necessary identifying information to Moore, Franks and Hoy

declined to restate the substance of their complaints during the course of MSHA’s section 103(g)

investigation, or during the mine’s follow up investigation. However, Franks and Hoy did

confirm during those investigations that they had observed inadequate examinations, they knew

which fireboss was responsible, and they had reported this information to Moore. Jt. Stips. 14,

20, 22, 24, 26-27, 34, 36, 40, 42-43, 45; Tr. 18-21. The Judge concluded that to the extent that

Franks and Hoy participated in these investigations, their activities were protected. 33 FMSHRC

at 1703. Section 103(g)(1) specifically provides that the anonymity of the complaining miner

and the miners referred to in the anonymous complaint will be protected. 30 U.S.C. § 813(g)(1)

(“[t]he name of the person giving such notice [to MSHA] and the names of individual miners

referred to therein shall not appear in such copy or notification”) (emphasis added). Indeed, the

statutory right of anonymity in complaints would be illusory, if miners could later be compelled

to identify unnamed miners during the investigation of the complaint. Furthermore and most

importantly, Franks and Hoy had previously provided the necessary identifying information to

Moore, pursuant to mine policy.

b. Emerald’s Policy

The Judge found that Emerald had a safety policy that permitted miners to bring safety

concerns either to a representative of the UMWA safety committee or to mine management. 

35 FMSHRC at 1700-01, 1706. If a miner chose to report a concern to the union, the safety

committeeman would then investigate the allegation, and upon finding a valid safety concern,

would report the unsafe condition or practice to management. Id. at 1701, 1706. 

The Judge’s finding is supported by substantial evidence in the record. Indeed, the

testimony of Emerald’s own witnesses demonstrates that the accepted practice at the mine was

for miners to bring safety concerns either to their safety committeeman or to mine management. 

Schifko, the compliance manager, testified that miners “have the right to take [safety complaints]

to management or their safety committee.” Tr. 84-86. Swetz, the local union president, testified

that a miner “can do it either way” and if a safety committeeman finds validity to a complaint

“then he has to go to management with it.” He stated that “[w]e tell everybody . . . Go to your

mine committee. Go to your safety committee. If you are not satisfied with that, you can go to

management.” Tr. 145, 151. 

In enacting the Mine Act, Congress indicated that the concept of protected activity in

section 105(c) “be construed expansively to assure that miners will not be inhibited in any way

in exercising any rights afforded by the legislation.” S. Rep. 95-181, at 36, reprinted in Senate

Subcomm. on Labor, Comm. on Human Res., Legis. History of the Federal Mine Safety and

36 FMSHRC Page 2095
7

 Under the previous Coal Act, the D.C. Circuit held that the reach of “protected

activity” extends to even bad faith or frivolous complaints. Munsey v. FMSHRC, 595 F.2d 735,

742-43 (D.C. Cir. 1978).

8

 While Schifko testified that he did question Moore about the identity of the fireboss, 

Tr. 94-95, there is no evidence in the record suggesting that Moore was the subject of a pattern

of continued questioning, harassment, and threatened disciplinary action. 

Health Act of 1977, at 624 (1978).7 We conclude that the Judge correctly concluded that Franks

and Hoy engaged in protected activity. 

2. Adverse Action

The Judge found that Franks and Hoy each suffered adverse action in the form of a

seven-day suspension as a result of their involvement in the section 103(g) complaint. 35

FMSHRC at 1703. This finding is unchallenged on review. 

3. Discriminatory Motive 

To establish a prima facie case, Franks and Hoy must show a connection between the

protected activity and the adverse action. Direct evidence of actual discriminatory motive is

rare. Short of such evidence, illegal motive may be established if the facts support a reasonable

inference of discriminatory intent. Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 

3 FMSHRC 2508, 2510-11 (Nov. 1981), rev’d on other grounds sub nom. Donovan v. Phelps

Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983); Sammons v. Mine Services Co., 6 FMSHRC 1391,

1398-99 (June 1984). The Commission has determined that hostility or “animus” towards the

protected activity, timing of the adverse action in relation to the protected activity, and disparate

treatment may all be considered in determining the existence of a connection between the

protected activity and the adverse action. Chacon, 3 FMSHRC at 2510-11.

The Judge concluded that Franks and Hoy triggered hostility as a result of their protected

activity. 35 FMSHRC at 1704. She noted that mine management repeatedly called Franks and

Hoy into the mine office, and demanded that they name the fireboss. Id. The Judge concluded

that because Emerald’s management was already aware of the identity of the accused

fireboss(es), and because Moore, who had investigated the complaints, was not questioned as

part of Emerald’s investigation, “it is reasonable to infer that Emerald’s continuing questioning

and harassment of Franks and Hoy amounted to hostility toward them for making accusations

against a fireboss.”8

 Id. 

Emerald maintains that the factual findings the Judge relied on to support her

determination that Emerald had a discriminatory motive are not supported by substantial

evidence in the record. E. Reply Br. at 6-11. More specifically, Emerald contends that the Judge

36 FMSHRC Page 2096
9

 Emerald also argues that the Judge’s finding that Franks and Hoy disclosed the identity

of the accused firebosses to Moore is not supported by substantial evidence. We have addressed

this argument in our analysis of protected activity and concluded that substantial evidence does

indeed support the Judge’s finding.

10 Additionally, the fact that Mark Cole made a similar complaint and was not punished

at all after recanting his complaint would seem to be contrary to the interests of any disciplinary

action. If mine management thought that Cole’s complaint might be valid, allowing a witness to

change his story would be harmful to the operator’s investigation, while pressuring a witness to

(continued...)

erred in stating that Schifko was aware of the identity of the fireboss(es) who were accused of

performing inadequate examinations.9

 

Substantial evidence in the record supports the Judge’s conclusion that Schifko knew

which firebosses had been accused. Schifko testified that Moore had told him that he had

received a complaint about the adequacy of preshift examinations of the beltline. Tr. 95. 

Schifko also testified that Moore informed him that in response to the complaint he had

investigated a specific date and time. Tr. 95-96. Schifko testified that he cross-referenced the

examination books, and learned that two firebosses were responsible for the beltline on the date

Moore mentioned. Tr. 95-96. Schifko also knew the identity of the fireboss who was alleged

not to have properly performed the preshift examination because, as he told Hoy, he had

obtained identifying information from Mark Cole, another beltman at the mine. Tr. 22, 81. 

Therefore, Emerald management was aware of five critical facts at the time they

demanded that Franks and Hoy provide the name of a fireboss: (1) an anonymous section 103(g)

complaint had been filed with MSHA regarding examinations of the beltline; (2) an unnamed

miner or miners had complained about the preshift examinations of the beltline to Moore; (3)

Moore had investigated whether an inadequate examination of the beltline had been performed

on a specific date in response to the complaint; (4) the specific date and shift which Moore had

investigated; and (5) Franks had spoken with a MSHA inspector and told him that he had

information relating to the allegation in the section 103(g) complaint.

Emerald argues that its actions did not demonstrate a hostility toward Franks and Hoy

based on the miners’ protected activity because the operator may have also had the intent to

build a record to substantiate a disciplinary action against an accused fireboss. E. Reply Br. at 7. 

We find the argument unpersuasive in light of Emerald management’s knowledge of the specific

facts set forth above and how they were acquired.

Emerald knew everything it needed to know to determine the identity of the allegedlyderelict fireboss(es). Furthermore, it gained some of that knowledge from Moore, a person

Franks and Hoy were permitted to use as a conduit for their safety concerns. Mine management

also knew that, consistent with practice at the mine, Moore had investigated complaints about a

fireboss. Yet the record does not indicate that Emerald put any real pressure on Moore to

provide support for a purported disciplinary action against a fireboss.10

36 FMSHRC Page 2097
10(...continued)

recant and rewarding him for doing so could only serve the interest of burying the issue. 

35 FMSHRC at 1706.

11 Commissioner Althen states that “the record does not reflect that the 103(g) complaint

itself, including who may have filed it, was raised at any of the meetings . . . .” Slip op. at 43. This is

incorrect. The substance of the anonymous complaint was the subject of discussion at each

meeting between Emerald management and the miners. See Jt. Ex. 1.

Thus, Emerald’s continued questioning of Franks and Hoy, after the MSHA investigation

had been closed, supports the Judge’s reasonable inference that Emerald demonstrated hostility

toward miners who had complained about preshift examinations of the beltline. While other

miners claimed to know the identity of the fireboss(es) at issue, only Franks and Hoy were

pressured to cooperate and punished for failing to do so.

B. Emerald’s Attempted Rebuttal

The operator may attempt to rebut a prima facie case by showing either (1) that the

complainant did not engage in protected activity or (2) that the adverse action was in no part

motivated by protected activity. Robinette, 3 FMSHRC at 818 n.20. 

1. Emerald’s Loss of Protection Argument

On review, Emerald argues that the miners’ refusal to identify a fireboss or a specific

examination during the section 103(g) investigation and Emerald’s internal investigation caused

Franks and Hoy to lose the protection afforded by section 105(c). Franks’ and Hoy’s protected

activities included the safety complaints made to their committeeman, as well as their

participation in MSHA’s section 103(g) investigation, and in Emerald’s internal investigation

into the substance of the anonymously filed complaint. 35 FMSHRC at 1703. Both the MSHA

investigation and Emerald’s internal investigation were in response to the filing of an

anonymous section 103(g) complaint.11

Emerald contends that the Judge erred in finding that Franks and Hoy did not lose the

protection of the Mine Act, and in holding that the Commission’s decision in Secretary of Labor

on behalf of Pack v. Maynard Dredging Co., 11 FMSHRC 168, 172-73 (Feb. 1989) was

distinguishable. In Pack, a mine security guard was discharged after he failed to report an unsafe

condition to mine management prior to reporting the condition to MSHA. The Commission

affirmed the Judge’s decision that Maynard did not violate section 105(c) when it discharged the

miner. Id. at 173. Pack was fired as a result of his failure to perform his job duties as a security

guard, which included reporting unsafe conditions to management. Id.

The Judge correctly held Pack to be distinguishable. Company policy at Maynard

Dredging required miners to report unsafe conditions directly to management. 35 FMSHRC at

1705-1706. Franks and Hoy, however, followed Emerald’s accepted policy and reported an

36 FMSHRC Page 2098
12 We note parenthetically that we find it very troublesome that MSHA and Emerald

conducted meetings, both jointly and separately, in which they attempted to force Franks and

Hoy to disclose the names of the miners who were the subject of the anonymous complaint. We

find it even more troubling that inspector Severini informed Emerald management that Franks

was aware of information relating to the unsafe practice that had been reported anonymously to

MSHA pursuant to section 103(g). Jt. Stips. 17-20. We believe that by outing Franks as an

informant to his employer, inspector Severini actively discouraged the filing of anonymous

complaints by miners, irrespective of whether Franks was responsible for the filing of the

complaint.

13 Even our dissenting colleague does not agree with Emerald that Franks and Hoy lost

the protection of the Mine Act. Instead, he would conclude that the complainants engaged in

both protected and unprotected activities. Slip op. at 41.

14 Our affirming colleagues state that “substantial evidence does not support the Judge’s

finding that the operator’s proffered motive was pretextual.” Slip op. at 18. However, they do

not identify findings of fact in the Judge’s decision that are not supported by the record. 

unsafe practice to a representative of their safety committee. Hence, Franks and Hoy were

correctly found to have engaged in protected activities.12 13

2. Emerald’s Legitimate Business Purpose Argument14

Even if the Commission finds that miners engaged in protected activity, an operator may

rebut a prima facie case by proving that the adverse action was in no part motivated by the

protected activity. Robinette, 3 FMSHRC at 818 n.20. The Commission has enunciated several

indicia of legitimate non-discriminatory reasons for an employer’s adverse action. These include

evidence of the miner’s unsatisfactory past work record, prior warnings to the miner, past

discipline consistent with that meted out to the complainant, and personnel rules or practices

forbidding the conduct in questions. Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June

1982). 

An asserted reason may be found to be pretextual “where the asserted justification is

weak, implausible, or out of line with the operator’s normal business practices.” Sec’y of Labor

on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990). A

complainant may establish that an operator’s explanation is not credible by demonstrating: 

(1) that the proffered reason has no basis in fact; (2) that the proffered reason actually did not

motivate the adverse action; or (3) that the proffered reason was insufficient to motivate the

adverse action. Turner, 33 FMSHRC at 1073 (citations omitted). 

The Judge found that Emerald’s explanation for the suspensions – that Franks and Hoy

were disciplined because of their failure to identify one or more firebosses who they alleged had 

failed to perform an adequate preshift examination of the beltline – was “without merit.” 

35 FMSHRC at 1706. The Judge concluded that the proffered reason did not motivate the

suspensions, but was instead a pretext to punish the miners for making complaints about a

fireboss. Id. In this regard, she concluded that it was clear that Emerald had previously

36 FMSHRC Page 2099
15 Her finding is supported by substantial evidence in the record. See slip op. at 7-8; 

Tr. 24-25, 47, 53, 55-56, 63-65, 123-24; 129. Moore disputed the testimony of Franks and Hoy

that they identified the fireboss to him, but the Judge found him not to be credible because “[h]is

answers were opaque and evasive.” 35 FMSHRC at 1699.

16 Her finding is supported by substantial evidence. Slip op. at 10; Tr. 95-96.

17 This finding is also supported by substantial evidence. Slip op. at 10; Tr. 22, 81, 95-

96.

18 Furthermore, there is no indication in the record that Franks or Hoy had ever received

a disciplinary action or had a poor work performance history. Id. at 1706.

permitted miners to report unsafe practices to a representative of their safety committee, and had

not previously required the complaining miner to report the information directly to management. 

Id. at 1703, 1706. She concluded that Franks and Hoy not only alerted a representative of the

safety committee that there was an issue, but also identified the fireboss.15 Id. at 1706. The

safety committee representative, Moore, informed management of the details of his

investigation, including the date and shift that he investigated.16 Id. at 1706-07. The Judge also

concluded that based on information from Moore and Cole, mine management knew which

fireboss was accused of not having made a proper examination.17 Therefore, the Judge

determined that Emerald failed to prove that it had a legitimate business reason to suspend

Franks and Hoy.18 Id. at 1707.

Emerald argues, based on Schifko’s testimony, that it was justified in its continued

interrogation and ultimate suspension of Franks and Hoy because it did not have sufficient

knowledge of the identity of any firebosses who allegedly did not properly perform their jobs. 

E. Br. at 27-29. In particular, Emerald challenges the Judge’s conclusion that Schifko had

knowledge based on the first interview of Mark Cole. E. Br. at 28. According to Schifko, in

Cole’s first interview – conducted by MSHA – he had identified a fireboss, but in a subsequent

interview – conducted solely by Emerald – Cole had recanted. Tr. 77-78. Schifko said that Cole

appeared “very confused and didn’t have much understanding what was alleged” in the MSHA

interview. Tr. 78. But when he was interviewed without the presence of MSHA, Cole changed

his testimony “completely,” said that he “wasn’t even on that belt line,” and “alluded to the fact

that he was coerced into backing people up. . . coerced into what he said originally.” Tr. 78-79. 

Schifko’s testimony about what Cole said in the two meetings must be viewed through

the lens of his credibility. The Judge rejected Schifko’s testimony, finding him “to be a polished

but disingenuous witness.” 35 FMSHRC at 1700-01. The Judge’s characterization is supported

by the record. For example, regarding Emerald’s policy that a miner may report safety

complaints either to management or to the UMWA safety committee, Schifko had to be asked

the question five times before he would acknowledge that a miner may report a safety problem to

the safety committee rather than to management. Tr. 84-86. Additionally, Schifko testified that

when he first heard the dates and shifts of the fireboss runs from Cole, he could not determine

the identity of the fireboss because that particular belt is split for purposes of fireboss runs, and

Cole did not say whether it was inby or outby of the split. Tr. 81-82. But this testimony was

36 FMSHRC Page 2100
19 It is well established that courts must usually rely upon circumstantial evidence and

reasonable inferences to establish motivation in discrimination cases. See Desert Palace, Inc. v.

Costa, 539 U.S. 90, 99-100 (2003) (Utility of circumstantial evidence in discrimination cases has

often been acknowledged; such evidence “may [] be more certain, satisfying and persuasive than

direct evidence.”); Sec’y of Labor on behalf of Williamson v. Cam Mining, LLC, 31 FMSHRC

1085, 1089 (“The Commission has recognized that direct evidence of motivation is rarely

encountered; more often, the only available evidence is indirect.”) 

Thus, while our concurring and dissenting colleagues would reverse the Judge’s

conclusion that the operator’s purported motivation was pretextual, allegedly due to a lack of

substantial evidence, their opinions do not properly address the circumstantial evidence in

context. The opinion of Chairman Jordan and Commissioner Nakamura does not analyze the

issue. Commissioner Althen acknowledges the role of circumstantial evidence but then

discusses the elements of the prima facie case and rebuttal in isolation, without considering the

interrelationship of the facts respecting each element. Further, he rejects the Judge’s finding that

Emerald had knowledge of the identity of the firebosses without considering the information

Schifko received. He also fails to consider disparate treatment shown by the lack of pressure put

on Moore by Emerald. And he fails to recognize the Judge’s credibility determinations,

especially with regard to Schifko. These facts justify the Judge’s finding of pretext. See Jim

Walter Res. Inc., 28 FMSHRC 983, 991 n.10 (Dec. 2006) (Absence of direct evidence does not

necessarily undercut reasonableness of inferences drawn “when it is difficult or impossible to

obtain direct evidence on the fact to be inferred.”) 

inconsistent with Hoy’s testimony (which the Judge found credible) that Schifko acknowledged

to him that he knew who the fireboss was based on what Cole had said. Tr. 22. Hence, the

Judge was justified in concluding that Schifko was able to determine – from Cole as well as

Moore – the identity of firebosses whose work was being questioned. 

We conclude that substantial evidence supports the Judge’s conclusion that Emerald’s

asserted business justification was not credible.19 Franks and Hoy reported unsafe practices to

Emerald in a manner that was entirely consistent with the mine’s policy and practice. The

miners at Emerald were permitted to report unsafe practices to management through an

intermediary on the safety committee or the miners could choose to report directly to

management. Mine management had sufficient information to identify firebosses who had

allegedly not properly performed their jobs. Yet, management continued to interrogate Franks

and Hoy, and ultimately suspended them. In the context of retaliation cases under the National

Labor Relations Act, it is recognized that a company’s proffered “legitimate business reason” for

the interrogation of an employee is pretextual when the company already knew the answers to

the questions it was asking the employee. United Serv. Auto. Ass’n v. NLRB, 387 F.3d 908, 916

(D.C. Cir. 2004). Thus, Emerald failed to rebut the complainants’ prima facie case by presenting

a legitimate and credible business reason.

Emerald also contends that irrespective of mine policy, Franks and Hoy were required to

inform management of the details of the complaint that they previously made to their safety

committeeman because management had subsequently become aware that they had complained. 

36 FMSHRC Page 2101
20 Evidence that the operator has discharged employees, in the past, for failing to conduct

adequate examinations does not establish that the discipline of Franks and Hoy was consistent

with Emerald’s policies. Franks and Hoy have not been accused of failing to perform adequate

examinations.

21 Having failed to rebut the prima facie case, an operator may still prevail by

establishing an affirmative defense to the allegations. A mine operator may affirmatively defend

against a prima facie case by proving that it was also motivated by the miner’s unprotected

activity and would have taken the adverse action for the unprotected activity alone. Robinette, 3

FMSHRC at 817-18; Pasula, 2 FMSHRC at 2799-800. This kind of situation is referred to as a

“mixed motive” case. However, on review Emerald did not argue that it took the adverse action

because of both protected and unprotected activity, and that the miners’ unprotected activity, by

itself, was sufficient justification for the adverse action. See E. Br. at 23-29. Accordingly, we

need not address this issue.

E. Br. at 17-18. This ad hoc revocation of an established policy is evidence that Emerald’s

asserted rationale is out-of-line with its normal business practices. See Price, 12 FMSHRC at

1534. Furthermore, Emerald failed to present any evidence that it had disciplined miners in the

past for reporting an unsafe practice to a safety committeeman and not mine management.20 See

Bradley, 4 FMSHRC at 993-94. 

Finally, we find it relevant that Emerald’s internal investigation concerned the same

allegation that was reported anonymously to MSHA and resulted in a MSHA investigation and

the questioning of 34 Emerald employees. Because of the overlap of the complaints of Franks

and Hoy with the substance of the anonymous section 103(g) complaint, it is impossible to

untangle their discipline from the filing of the section 103(g) complaint. For these reasons, we

affirm the decision of the Judge that Emerald failed to establish that its asserted business

justification was legitimate. Substantial evidence supports the Judge’s finding that Emerald’s

rationale was a pretext. Accordingly, Emerald has not rebutted the complainants’ prima facie

case of discrimination.21

We are cognizant of a mine operator’s responsibility to investigate misconduct in a mine. 

Miners who engage in a pattern of systemic unsafe practices, such as failing to walk the belt

during a pre-shift examination, should face discipline. However, this is not a case in which the

complainants were accused of unsafe behavior or practices; rather, it is a case regarding miners

who reported possible misconduct through established channels of communication. As the Judge

recognized, reporting possible misconduct to an intermediary allows a miner to make a

complaint without fear of harassment or retaliation. 35 FMSHRC at 1704-05. Once that policy

is established, a miner should be able to reasonably rely on its protection. To hold otherwise

would have the effect of discouraging miners from reporting unsafe practices, to the detriment of

the policy goals of the Mine Act.

36 FMSHRC Page 2102
22 The Secretary did not participate in this case either before the Judge or before the

Commission. However, after the oral argument, the Secretary, with the Commission’s

permission, filed an amicus curiae brief on the issue of interference with protected rights. 

Emerald has filed a response brief, and we have considered both briefs. The Secretary argues

that Franks and Hoy have asserted colorable claims of interference with protected activity under

section 105(c) of the Mine Act, and that these claims should be adjudicated. The Secretary’s

position is consistent with an argument by the UMWA on behalf of Franks and Hoy. 

Complainants Br. at 34-35 (“C. Br.”); Oral Arg. Tr. 79-80. 

We agree with the Secretary and the UMWA that the Mine Act establishes a cause of

action for unjustified interference with the exercise of protected rights which is separate from the

more usual intentional discrimination claims evaluated under the Pasula - Robinette framework. 

This cause of action has been implicitly recognized by the Commission. See Moses v. Whitley

Dev. Corp., 4 FMSHRC 1475, 1478-79 (Aug. 1982); Sec’y on behalf of Gray v. N. Star Mining,

Inc., 27 FMSHRC 1, 7-8 (Jan. 2005). The interference cause of action is based on the language

of section 105(c)(1) of the Mine Act: “No person shall discharge or in any way discriminate

against . . . or otherwise interfere with the exercise of the statutory rights of any miner . . . . 30

U.S.C. § 815(c)(1) (emphasis added). Moreover section 105(c)(2) grants the right to file a

complaint of discrimination with the Secretary to “[a]ny miner . . . who believes that he has been

discharged, interfered with, or otherwise discriminated against . . . .” 30 U.S.C. § 815(c)(2)

(emphasis added).

Although the complaints of Franks and Hoy may be colorable as interference claims, it is

not necessary to reach this issue since we find that substantial evidence supports the Judge’s

determination of discrimination under the Pasula - Robinette framework. Moreover,

consideration of this case as an interference claim would require the Commission to define the

parameters of interference claims, and set forth what is required of a complainant in proving

such a claim and what is required of an operator in defending against such a claim. The Judge

here acknowledged the interference component of this case, but chose to analyze it within the

Pasula - Robinette framework. We defer full Commission analysis of interference claims to an

occasion when a Judge has actually considered a section 105(c) case as an interference claim. 

III.

Conclusion

We conclude that the Judge below correctly applied the law to the facts and that her

decision is supported by substantial evidence. We would therefore affirm the Judge’s decision.22

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

/s / Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

36 FMSHRC Page 2103
Separate opinion of Chairman Jordan and Commissioner Nakamura:

I. Introduction

This discrimination proceeding involves two miners who confidentially complained to

their elected union safety committeeman about firebosses conducting inadequate preshift

examinations. After MSHA initiated an investigation pursuant to a section 103(g) safety

complaint, during which the miners’ confidentiality was breached, Mark Franks and Ronald Hoy

were suspended for failing to divulge the names of the firebosses to mine management. 

The Judge upheld the miners’ complaints of discrimination under section 105(c)(3) of the

Mine Act. 35 FMSHRC 1696 (June 2013) (ALJ). Although we determine that substantial

evidence does not support the Judge’s finding that the operator’s proffered motive was

pretextual, we nevertheless affirm the Judge’s ruling that Emerald violated section 105(c) of the

Mine Act. We do so because we conclude that the interrogations of the miners and the resulting

suspensions amount to an unjustified interference with their ability to exercise their statutory

rights.

This case requires us to confront the tension that can arise between the need to ensure

that miners are not deterred from lodging safety complaints, and the need for mine managers to

investigate safety issues at their mines. Although we acknowledge the critical importance of an

operator’s need to investigate all allegations of unsafe practices at its mine, that need must be

balanced against the potential chilling effect such investigation may have on the miners’

willingness to make safety complaints in the future. Ironically, if an investigation is conducted

under circumstances and in a manner perceived by the miners as coercive, it may in the longterm result in a reduction in safety, because miners will be reluctant to speak up about safety

issues. 

Investigations in which miners are asked about alleged unsafe activities of their coworkers are especially delicate. Such questioning has the potential to squelch miners’ initiative

to report such safety problems in the future. Because many miners will be reluctant to criticize

the actions of their fellow miners, any investigation with the potential of eliciting such

information must be narrowly and carefully conducted, to avoid a chilling effect on safety

complaints. The manner in which both MSHA and the operator carried out their investigations

in the instant case could not be further from this description. Indeed, we conclude that in light of

the particular record in this case, the procedures employed by Emerald to investigate the

complaint regarding inadequate belt exams will so significantly deter miners from making any

future safety complaints, that the operator cannot rely on Franks and Hoy’s failure to publicly

identify the belt examiners as justification for its disciplinary action.

II. Factual and Procedural Background

We adopt the “Factual and Procedural Background” portion of the opinion of

Commissioners Young and Cohen.

36 FMSHRC Page 2104
III. Analysis

A. Discrimination claims under the interference clause of section

105(c)(1)

 1. Statutory language and Commission case law

Because we are deciding this case under the interference prong of section 105(c), we first

set out the law in this area. Section 105(c)(1) of the Mine Act states that “[n]o person shall

discharge or in any manner discriminate against . . . or otherwise interfere with the exercise of

the statutory rights of any miner.” 30 U.S.C. § 815(c)(1) (emphasis added). Section 105(c)

contains additional references to discrimination complaints based on interference with protected

rights. For instance, section 105(c)(2) permits the filing of a discrimination complaint by a

miner, applicant or representative of miners “who believes that he has been discharged,

interfered with, or otherwise discriminated against.” 30 U.S.C. § 815(c)(2). That subsection

also refers to the Secretary’s complaint to the Commission, which may allege “discrimination or

interference.” Section 105(c)(3) also permits an individual to file a complaint charging

“discrimination or interference” in violation of section 105(c)(1).

The Senate Report states that “[i]t is the Committee’s intention to protect miners against

not only the common forms of discrimination, such as discharge, suspension, demotion . . . but

also against the more subtle forms of interference, such as promises of benefits or threats of

reprisal.” S. Rep. 95-181 at 36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on

Human Res., 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977,

at 624 (1978).

In Moses v. Whitely Development Corp., 4 FMSHRC 1475 (Aug. 1982), aff’d, 770 F.2d

168 (6th Cir. 1985), the Commission relied on the “interference” prong of section 105(c) in

ruling that an operator’s interrogation and harassment violated that provision. Id. at 1478-79. 

Although Elias Moses had not engaged in protected activity, he was questioned by his foreman

as to whether he had called MSHA after inspectors arrived at the mine to investigate a bulldozer

accident. On two subsequent occasions, in front of the other employees, the foreman again

accused Moses of reporting the accident to MSHA. Id. at 1476-77. Moses was subsequently

laid off and never recalled to work.

In addition to concluding that the operator had discharged Moses in violation of section

105(c), the Commission also considered whether coercive conversations and harassment alone

could constitute a violation of that statutory section. We determined that they could, finding

them to be among the “more subtle forms of interference.” Id. at 1478-79. We explained that:

A natural result of such practices may be to instill in the minds

of employees fear of reprisal or discrimination. Such actions

may not only chill the exercise of protected rights by the

directly affected miners, but may also cause other miners, who

36 FMSHRC Page 2105
wish to avoid similar treatment, to refrain from asserting their

rights. This result is at odds with the goal of encouraging miner

participation in enforcement of the Mine Act. 

Id. (footnote omitted). Considering the persistence with which the subject of Moses’ supposed

reporting of the accident was raised and the accusatory manner in which it was done, the

Commission determined that the conversations constituted prohibited interference under section

105(c)(1). Id. 

We recognized, however, that:

This is not to say that an operator may never question or comment

upon a miner’s exercise of a protected right. Such question or

comment may be innocuous or even necessary to address a safety

or health problem and, therefore, would not amount to coercive

interrogation or harassment. Whether an operator’s actions are

proscribed by the Mine Act must be determined by what is said

and done, and by the circumstances surrounding the words and

actions.

4 FMSHRC at 1479, n.8.

In Secretary of Labor on behalf of Mark Gray v. North Star Mining, Inc., 27 FMSHRC 1

(Jan. 2005), we stated that the issue of whether a management official’s conduct constitutes

interference proscribed by the Act “must be determined by what is said and done, and by the

circumstances surrounding the words and actions.” Id. at 8 (quoting Moses at 1479 n.8). Gray

involved conversations between the assistant superintendent and two miners who had testified

before a grand jury about smoking, ventilation and roof support violations at the mine. Id. at 2. 

Visited at his home and repeatedly asked about the grand jury proceeding, miner Mark Gray told

assistant superintendent Brummett that he did not want hard feelings between them because of

the testimony. Brummett replied, “No, they ain’t no hard feelings, unless you put the screws to

me, then I’ll kill you” and then laughed. Id. The next day, Brummett sought assurances from

Gray that Ray Young, the second miner, had not testified against him. Id. at 3. Brummett told

Gray that “if anyone had laid the screws to him that he would whip their ass.” Id. Shortly

thereafter, Gray left his job at North Star and went to work for another mining company.

The Judge dismissed Gray’s discrimination complaint, finding that Brummett’s statement

to Gray at Gray’s home was just an “exaggerated expression, commonly used between friends,”

and that his statement to Gray on the following day was directed at Young, not Gray. Id. at 5. In

vacating the decision, the Commission held that the judge examined Brummett’s statements too

narrowly, focusing mostly on the supervisor’s intent or motive. Moreover, the fact that

Brummett’s “whip ass” statement to Gray at the No. 6 mine was directed at Young, not Gray,

was “not determinative of whether, under the circumstances, the statement may have tended to

coerce Gray in the exercise of his Mine Act rights.” Id. at 11, n.13. We pointed out that an

interference analysis must “take into account the economic dependence of the employees on their

36 FMSHRC Page 2106
1

 We thus reject as inconsistent with our rulings in Moses and Gray, Emerald’s assertion

that there is no separate “interference” claim under section 105(c) of the Mine Act. Emerald

Response to Amicus Br. at 12. Its efforts to distinguish these cases is unavailing. Id. at 13.

2

 The Commission has previously relied on case law interpreting analogous provisions of

the NLRA for guidance in construing Mine Act provisions. See Sec’y of Labor on behalf of

Bernardyn v. Reading Anthracite, 23 FMSHRC 924, 934 n.8 (Sept. 2001); Pero v. Cyprus

Plateau Mining Corp., 22 FMSHRC 1361, 1368-69, n.11 (Dec. 2000).

3

 Consistent with our decision in Gray, we reject the operator’s contention, Emerald

Response to Amicus Br. at 14-15, that section 8(a)(1) of the NLRA is not analogous to the Mine

Act’s discrimination provision in section 105(c).

employers, and the necessary tendency of the former, because of that relationship, to pick up

intended implications of the latter that might be more readily dismissed by a more disinterested

ear.” Id. at 9 (quoting NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969)). Moreover, we

explained that, unlike the analysis generally referred to as the Pasula-Robinette test, which is

more commonly used in analyzing section 105(c) discrimination complaints, see Sec’y of Labor

on behalf of Pasula v. Consol. Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other

grounds 663 F.2d 1211 (3d Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle

Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981), a miner’s complaint of interference with

protected rights does not require proof of an operative’s motive to discriminate. Gray, 27

FMSHRC at 8, n.6. 1

In addition, the Commission in Gray, in following the analysis set forth in Moses for

evaluating an operator’s statements in an interference case, explained that Moses drew on

principles developed under the National Labor Relations Act.2 We noted in Gray that the

National Labor Relations Board had articulated the following test for determining whether a

violation of section 8(a)(1) of the NLRA occurred (that section makes it unlawful for an

employer “to interfere with, restrain, or coerce employee’s” exercise of protected rights):

[I]nterference, restraint, and coercion under Section 8(a)(1) of the

[NLRA] does not turn on the employer’s motive or on whether the

coercion succeeded or failed. The test is whether the employer

engaged in conduct which, it may reasonably be said, tends to

interfere with the free exercise of employee rights under the

[NLRA].

Gray, 27 FMSHRC at 9 (quoting American Freightways Co., 124 NLRB 146, 147 (Jul. 1959)

(citing 29 U.S.C. § 158(a)(1))).3

36 FMSHRC Page 2107
4

 Given that this standard incorporates action that can be “reasonably viewed from the

perspective of members of the protected class,” we are not persuaded by Emerald’s contention

that this is a subjective test based on the claimant’s state of mind. Emerald Response to Amicus

Br. at 17.

5

 The second prong of the proposed test is also consistent with our case precedent, as we

acknowledged in Moses that not all questioning by an operator about a miner’s exercise of a

protected right necessarily violations section 105(c). See page 20 infra.

2. The Secretary’s proposed test for interference claims

In his amicus brief in this matter, the Secretary has proposed the following test for

evaluating interference claims brought pursuant to section 105(c). He suggests that an

interference violation occurs if:

(1) a person’s action can be reasonably viewed, from the

perspective of members of the protected class and under the

totality of the circumstances, as tending to interfere with the

exercise of protected rights, and

(2) the person fails to justify the action with a legitimate and

substantial reason whose importance outweighs the harm caused to

the exercise of protected rights

Sec’y Amicus. Br. at 10.4

The Secretary suggests that when each of these interests are significant, the inquiry turns

to whether the operator’s actions were sufficiently tailored to advance its business justification

without causing unnecessary harm to protected rights. Id. at 20.

The Secretary’s proposed test is consistent with our prior precedent in this area,

reflecting the standard we articulated in Gray, 27 FMSHRC at 9 (analyzing “whether the

employer engaged in conduct which, it may reasonably be said, tends to interfere with the

exercise of [protected] rights”) (citation omitted) and Moses, 4 FMSHRC at 1478-79 (concluding

that conduct that would “chill the exercise of protected rights” violates section 105(c).5

Accordingly, we adopt this standard as the “interference test” in appropriate section 105(c)

cases, and apply it to the evidence in the record of this case.

36 FMSHRC Page 2108
6

 Emerald argues that the Commission’s consideration of a separate interference claim

will require the development of new record evidence. Emerald Response to Amicus Br. at 4. 

However, the operator was on notice well before trial that the miners had raised this cause of

action and consequently, it had the opportunity to defend against this claim at trial. Compl. of

Discrim. at 9 (“Emerald, by and through its agents, has interfered with both Complainants and

other miners’ right under Section 103(g) of the Mine Act to make a complaint about an alleged

danger or safety and health violation without disclosing to Emerald the names of individual

miners referenced in the complaint by interrogating both Complainants about the identity of

individual miners referenced in such a complaint. Such interference violates Section 105(c)(1)

of the Mine Act).” 

B. Interference claims of Franks and Hoy6

1. Franks and Hoy’s expectation that they could make a

confidential safety complaint

In order to assess the interference claim, it is critical to understand the need of the miners

to make a confidential complaint. After reviewing the record, it is difficult to overstate how

important confidentiality was to Franks and Hoy when they chose to make their complaint about

inadequate preshift exams to their union safety committeeman. When asked about going to his

safety committeeman rather than going directly to the company with a safety complaint, Hoy

explained “I thought it would be confidential more with Dave Moore and he would look into the

matter deeper.” Tr. 43. Franks testified that he complained to Dave Moore, the safety

committeeman, because he had a “fear of retaliation from the company” and that he expected to

be protected from that retaliation if he went through Moore. Tr. 52. Franks also indicated that

by going to Moore he was trying to avoid getting flack from his fellow miners. Tr. 48. Franks

testified that by going to Moore, he “assumed he [Moore] would approach the company with the

information that I gave him.” Tr. 47. Hoy also testified that he expected Moore to “check into

the matter,” (Tr. 19) and that when he gave the names to Moore “[h]e should have done

something about it.” Tr. 39.

Given the implications of their complaints, it is not surprising that Franks and Hoy

sought confidentiality. The complaints they made about the firebosses were serious charges. A

preshift examiner is required under law to make thorough examinations of certain areas of the

mine and certify in writing that he conducted the exam and noted any hazardous conditions

found. As local union president Anthony Swetz testified, a fireboss who does not conduct an

adequate exam yet certifies that he did so, is not only subject to discipline by his employer, but

also subject to criminal charges brought by government authorities. Tr. 142-43. The firebosses

at the Emerald Mine were hourly union employees. Tr. 39.

Franks and Hoy, in choosing to go to their union safety committeeman - not once, but

twice - were taking the initiative in trying to correct what they viewed as a significant safety

problem, while at the same time ensuring that their complaint would remain confidential. Again

36 FMSHRC Page 2109
7

 MSHA’s Program Policy Manual has recognized the need to protect the identity of

miners who make safety complaints to MSHA. The PPM provides that “[i]nformation received

about violations or hazardous conditions should be brought to the attention of the mine operator

(continued...)

and again the record shows that confidentiality was uppermost in their minds. This puts into

stark perspective the potential impact of the very public interrogations that ensued.

Such concerns about confidentiality because of fear of retaliation are very real and have

been recognized by both the courts and Congress. The Seventh Circuit’s discussion of the

informer’s privilege in Dole v. Local 1942, Int’l Bhd. of Elec. Workers, 870 F.2d 368, 372 (7th

Cir. 1989), is in many respects applicable to miners cooperating in mine safety investigations:

The doctrine of the informer’s privilege is not a recent

phenomenon, having its roots in the English common law. . . . The

underlying concern of the doctrine is the common-sense notion

that individuals who offer their assistance to a government

investigation may later be targeted for reprisal from those upset by

the investigation. . . . The privilege recognizes the responsibility of

citizens to cooperate with law enforcement officials and, by

providing anonymity, encourages them to assume this

responsibility. With the threat of reprisal real and unprotected

against, well-intentioned citizens may hesitate or decline to assist

the government in tracking down wrongdoers. The threatened

reprisal may be physical, but the privilege also recognizes the

subtler forms of retaliation such as blacklisting, economic duress

and social ostracism. . . . The most effective means of protection,

and by derivation the most effective means of fostering citizen

cooperation, is bestowing anonymity on the informant, thus

maintaining the status of the informant’s strategic position and also

encouraging others similarly situated who have not yet offered

their assistance.

Id. at 372. 

Congress has been motivated by such concerns in enacting “whistleblower” statutes. 

Aware of these kinds of issues in the mining industry, Congress included section 103(g) in its

enactment of the Mine Act. Section 103(g) allows a miner to make complaints to the Secretary

about violations of the Mine Act or any mandatory health or safety standard, or an imminent

danger. 30 U.S.C. § 813(a). The legislative history of the Act emphasized that this provision,

which was carried over from the Coal Act, was based on the firm belief “that mine safety and

health will generally improve to the extent that miners themselves are aware of mining hazards

and play an integral part in the enforcement of the mine safety and health standards.” S. Rep.

No. 95-181, at 30 (1977), reprinted in Legis. Hist. at 618.7

 To protect the reporting miner from

36 FMSHRC Page 2110
7

(...continued)

without disclosing the identity of the person(s) providing the information.” III MSHA, U.S.

Dep’t of Labor, Program Policy Manual, Part 43, at 8 (2003). It further provides that “[i]f a

special inspection is conducted, the MSHA inspector will notify the operator of the complaint

pursuant to 30 C.F.R. 43.4(c), but the inspector must not divulge to the operator the name of the

complainant or the names of any individuals referred to in the complaint.” Id. 

retaliation, section 103(g) provides that the notice of the complaint provided to the mine operator

by the Secretary is not to include the name of the reporting miner nor the names of the individual

miners involved in the alleged violations. The importance of maintaining confidentiality was

emphasized in the legislative history:

The Committee is aware of the need to protect miners against

possible discrimination because they file complaints, and

accordingly, the Section requires that the name of the person filing

the complaint and the names of any miners referred to in the

compliant not appear on the copy of the complaint which is served

on the mine operator. While other provisions of the bill carefully

protect miners who are discriminated against because they exercise

their rights under the Act, the Committee feels that strict

confidentiality of complainants under Section [103(g)(1)] is

absolutely essential. 

Id. at 617.

This review of the importance of protecting the confidentiality of miners making

complaints of others violating the Mine Act provides the backdrop to our analysis of whether a

reasonable miner in Franks and Hoy’s position would be reluctant to lodge future safety

complaints at the mine, given the actions of the operator. The interrogations that resulted in the

suspensions of Franks and Hoy were in fact triggered by a person or persons filing a 103(g)

complaint. The complaint alleged, among other things, that the firebosses “only stop at the

mandoors to check belts,” that the beltlines “look like a powder keg” and that the mine was “not

being inspected properly by State or MSHA.” Jt. Ex. 1.

As part of his investigation into the section 103(g) complaint, MSHA inspector Thomas

Bochna came to the mine, approached Franks, and asked him if he had ever seen a fireboss fail

to perform a proper belt examination. Jt. Stip. 14. Franks told him that he knew of an incident,

the fireboss responsible, and the date on which it happened. Id.

Given the importance of confidentiality surrounding a 103(g) complaint, it is astounding

that in conducting its interviews, MSHA so publicly revealed Franks and Hoy to both company

and union representatives as persons who could identify firebosses who had performed

inadequate preshift exams. Our dissenting colleague states that any error MSHA might have

made in its handling of the section 103(g) investigation by bringing Franks and Hoy into an

36 FMSHRC Page 2111
8

 Hoy also testified that after he talked to Dave Moore he was moved to the opposite side

of the coal mine. A transfer he attributed to complaining about the firebosses. Tr. 37. Frank

testified that he also was moved to the opposite end of the mine from where Dave Moore

worked. Tr. 59-60.

9

 Indeed, Hoy ultimately concluded “[a]pparently there is no confidentiality at all, I

found out.” Tr. 44

interview attended by management cannot be a basis for finding interference by the operator. 

Slip op. at 52. We reiterate that we are not imputing any discriminatory intent (to MSHA or

Emerald) in this analysis; nor do the miners need to prove intent under the interference prong of

section 105(c). Rather, as Gray instructs, we must consider the “totality of the circumstances” in

ascertaining whether the operator’s conduct interfered with the exercise of statutory rights. 27

FMSHRC at 10. In this case, for better or worse, the circumstances included the fact that MSHA

had conducted an investigation in which it made public that Franks and Hoy had knowledge

supporting the allegations of inadequate preshift exams.

Franks and Hoy’s desire for confidentiality was also grounded in their concern about

retaliation from fellow miners if it became public that they had accused the examiners of unsafe

practices. The firebosses about whom they complained were also union members, (Tr. 42) and

this influenced Franks and Hoy’s decision to go their union safety representative. Id. Hoy

testified that he expected to receive some protection by going through Moore. Tr. 43.

Franks and Hoy’s desire for confidentiality was justified, given their description of the

reactions of their fellow employees. After Franks was questioned as part of MSHA’s

investigation, he explained that when he came back to work he “was receiving a lot of flack from

the other workers: they told me not to give the name of the individual.” Tr. 48.

This incident makes clear that others at the mine knew that Franks had spoken with the

MSHA inspectors. This is not surprising, given that the MSHA and management interviews

with Franks and Hoy were not conducted in private, but were attended by many other

individuals. Slip op. at 3-4.

Hoy, for his part, was so troubled that he telephoned MSHA Inspector Severini on

October 5, the day after he had been summoned to a meeting with management and MSHA

officials. Hoy testified that he called MSHA because “I was in the lamp room, and a gentleman

came up to me and told me I had a big target on my back for talking to the inspectors.” Tr. 33. 

Hoy confirmed that this gentleman was an hourly employee. Tr. 34.8

Franks and Hoy’s wish for confidentiality seemed to be thwarted at every turn,9

beginning with Franks being called out of the mine to meet with MSHA, Jt. Stips. 15, 16. Given

their preference to report their allegations of safety violations through the private channels

offered by their union safety committeeman, it is not surprising that they would perceive the

repeated interrogations by management (set forth in detail by our colleagues, slip op. at 3-4) as

36 FMSHRC Page 2112
10 The record does not establish the identity of the individual who made the 103(g)

complaint. Moreover, even if Franks and/or Hoy had made the 103(g) complaint, their views on

the confidentiality rights afforded to them are not necessarily correct. Nonetheless, their

statements demonstrate their views about the importance of 103(g) to miners who make safetyrelated complaints and their on-going wish to maintain the confidentiality of their complaints.

11 We note that if disciplinary action were taken against the firebosses and grievances

were filed by the union, Swetz and the local union would have represented them.

coercive. The constant questioning was additionally problematic to them because Franks and

Hoy believed that they did not have to provide the information, due to the existence of the 103(g)

complaint. Tr. 19, 20, 39. Indeed, Franks stated explicitly that “I thought I was protected under

the 103(g).10 Tr. 58.

Unfortunately, the presence of the local union president probably did nothing to assuage

their concerns. Although Anthony Swetz gave lip service to his job as looking out for

“everybody at the local” (Tr. 150), he specifically testified: “There was a blanket allegation

made against 18 firebosses, no specifics, no names, no anything. Several of these firebosses

were very concerned: Am I the focus of this investigation? That’s why I was there [at the

meetings with MSHA and Hoy and Franks].” Tr. 149-50.11

It is against this singular backdrop – of MSHA’s very public 103(g) investigation, the

seven citations MSHA subsequently issued to Emerald, the additional fifteen interviews that

management conducted with other miners after the end of the MSHA investigation (after MSHA

interviewed 34 miners), perceived pressure from fellow union employees, local union officials

representing the interests of the firebosses during the interrogations, and the unwavering

expectations of Franks and Hoy that they could make a safety complaint confidentially – that we

will examine whether Emerald’s interrogations and suspensions of these miners were coercive. 

Slip op. at 3-5, 23, 25-26. We emphasize again that for the miners to prevail on their

interference claim, proof of the operator’s intent to interfere with the miners’ statutory rights is

not required. 

2. Whether the operator’s actions can be reasonably viewed to

interfere with protected activity

We now turn to the specific discrimination claims of Franks and Hoy under the

interference prong of section 105(c). As we discuss below, under the unique circumstances of

this case, we conclude that Emerald interfered with the protected right of Franks and Hoy to

lodge a safety complaint with their union safety committeeman. The events occurring at this

mine coalesced in such a way so that, from the perspective of a miner employed at this mine, the

ability to make such a safety complaint without reprisals was compromised.

The presence of numerous Emerald managers when Franks and Hoy were questioned

during the MSHA investigation and later during Emerald’s investigation, undoubtedly created a

coercive environment to the meetings. See Stoody Company, 320 NLRB 18, 18-19 (Dec. 1995)

36 FMSHRC Page 2113
12 The stipulations also suggest that Franks was brought out of the mine during the

middle of his shift and upon entering the meeting room was asked whether he was comfortable

with everyone in the room. It was only after he had answered “yes,” that he was identified by

the inspector as someone who had admitted to having information regarding the inadequate

examinations. Jt. Stips. 18, 19.

(interrogation found coercive when high level supervisor conducted the questioning in his office

(“the core of management authority”)) (citation omitted). More than one manager attended most

of these sessions. William Schifko, the Emerald Compliance Manager, and Christine Hayhurst,

a high-ranking official in the human resources division, attended all of these meetings. The final

meeting with Franks and Hoy also included Joseph Pervola, Emerald’s safety manager. Jt. Stips.

46, 49. Although our dissenting colleague notes Hoy’s statement during the October 4 meeting

with MSHA that he was comfortable with having everyone in the room, slip op. at 42, Hoy

explained in his testimony that he had never been part of a safety hazard investigation before and

that he did not know he had the right to object to some of the participants at the meeting. Tr. 41.

Franks testified that in his first interview with MSHA, the inspector told him everything

would be confidential, that he would not be discriminated against and there would be no

retaliation from the company. Although Franks acknowledged that he told the inspector he was

comfortable with everyone in the room, he testified that “I never participated in a federal

investigation before. I figured this was his investigation,” and that he did not know he had any

right to object. Tr. 49.12

The persistence of the managers’ questioning, in the face of the miners’ repeated refusal

to provide the names of the firebosses, also added to the coercive quality of the questioning. See

Moses, 4 FMSHRC at 1479. Emerald’s inquiries continued despite the miners’ prior refusal to

provide the names to the MSHA inspectors and the information to management. Franks was

interviewed by MSHA and management a total of six times; Hoy was interviewed at least three

times. Emerald’s numerous demands that Franks and Hoy reveal the names of the firebosses,

when the miners had clearly made their complaints via what they believed was a confidential

process, highlights the coercion the miners perceived when repeatedly asked a question they had

refused to answer. In fact, Hoy explicitly told Schifko that his questions constituted harassment

and that he would be filing a complaint of discrimination under section 105(c). 35 FMSHRC at

1699. 

The consistent responses that Franks and Hoy gave over the course of the nine total

interrogations they endured made it obvious that confidentiality was their foremost concern. At

no time did they retract their complaints that inadequate preshifts had been conducted. Instead

they continued to point out that they had given the requested names and dates to their union

safety committeeman. In short, for fear of retaliation, they did not want to be made to publicly

“finger” offending union firebosses. 

It is also relevant that the Emerald managers did not try to dispel the coercive effect of

their questioning by telling Franks and Hoy why they needed them to reveal the identities of the

36 FMSHRC Page 2114
firebosses and guaranteeing that no adverse action would be taken based on the answers. These

are practices the NLRB takes into account when evaluating whether the questioning of an

employee is coercive. Johnnie’s Poultry Co., 146 NLRB. 770, 775 (Apr. 1964), enforcement

denied on other grounds, 344 F.2d 617, 619 (8th Cir. 1965).

Considering the totality of the circumstances in the case, we conclude that the

suspensions of Franks and Hoy undoubtedly will have a profound impact on many, if not most,

of the miners’ willingness to make safety complaints in the future. Emerald suspended Franks

and Hoy for seven days without pay for the “[f]ailure to provide information you have

concerning serious allegations of safety violations.” Jt. Exs. 3 and 4. It would be the brave

miner, indeed, who would voluntarily allege safety violations in the future, knowing that he or

she might risk suspension (or perhaps discharge) if the information provided was deemed

insufficient by the operator. As counsel for Franks and Hoy correctly pointed out, a “reasonable

miner . . . would be disinclined to risk such consequences by reporting future [safety problems].” 

C. Post-Hearing Br. at 27.

In Multi-Ad Services, Inc., v. National Labor Relations Board, 255 F.3d 363 (7th Cir.

2001), the Seventh Circuit ruled that substantial evidence supported the conclusion that

management violated the NLRA by coercively interrogating an employee in a closed-door

meeting about interest in forming a union. The Court set forth the following test to determine

whether an employee would perceives an employer’s actions as coercive:

Factors that ought to be considered in deciding whether a

particular inquiry is coercive include the tone, duration, and

purpose of the questioning, whether it is repeated, how many

workers are involved, the setting, the authority of the person

asking the question, and whether the company otherwise had

shown hostility to the union. We also consider whether questions

about protected activity are accompanied by assurances against

reprisal and whether the interrogated worker feels constrained to

lie or give noncommittal answers rather than answering truthfully.

Id. at 372 (citation omitted). 

The Court based its finding of coercion on the following: a closed-door meeting was

conducted in a manager’s office by two people who had authority to fire the worker being

interrogated; they questioned him regarding why he would want to bring a union into the

company; they asked about the worker’s own career advancement; they did not assure him that

reprisals would not be taken against him, and the meeting was conducted after company

managers had expressed uneasiness over union activity. Id.

As this case illustrates, the inquiry regarding whether interrogations are coercive involves

many factors, several of which are present here. To summarize, we find that the operator’s

actions (questioning Franks and Hoy and then suspending them) would be viewed by a

reasonable miner, under the totality of the circumstances, as tending to interfere with the exercise

36 FMSHRC Page 2115
of protected rights because: repeated interviews took place where numerous workers were

questioned; upper level management conducted the interviews; the managers questioning the

miners gave no assurances against reprisal, and Franks and Hoy were suspended.

3. The operator’s need for the requested information

Under the next step of the Secretary’s suggested interference test, Emerald must justify

its actions “with a legitimate and substantial reason.” Its rationale, adamantly and consistently

presented both to the judge and to us, is its right – indeed, its responsibility – to investigate

safety complaints at the mine.

We recognize, of course, the right and essential responsibility of mine owners to

investigate safety complaints. The Mine Act itself states that “operators of [coal or other] mines

with the assistance of the miners have the primary responsibility to prevent the existence of

[unsafe and unhealthful] conditions and practices in such mines.” 30 U.S.C. § 801(e). This

bedrock principle is vital to miner safety.

Our decision in Secretary of Labor on behalf of Pack v. Maynard Branch Dredging

Company and Roger Kirk, 11 FMSHRC 168 (Feb. 1989), emphasized the need of an operator to

require miners to report dangerous conditions. In that case, the Secretary argued that when a

miner reports a dangerous condition to MSHA, this “insulates [the miner] from being discharged

for failing to also report that condition to his foreman or co-workers.” Id. at 172. We stated that

this position failed to consider the operator’s right to require the reporting of dangerous

conditions:

While section 2(e) of the Mine Act provides that mine operators

have the primary responsibility to prevent unsafe conditions in

mines, that section adds that miners are to provide assistance to

operators in meeting that responsibility. It would make little sense 

to assert that an operator may not receive such assistance because a

miner elects instead to report such a condition only to MSHA.

Id. at 173.

William Schifko, the Emerald compliance manager, explained why he needed the miners

to provide the names: “[I]f you are going to make an accusation against somebody, you have got

to be able to know the facts, and, I mean, you can’t accuse somebody of something without

having some concrete evidence.” Tr. 74. As Christine Hayhurst, Emerald’s human resources

supervisor testified, in actions against individuals for violating safety rules “[w]e need facts. We

need witnesses to stand up against the facts.” Tr. 107.

4. Balancing the miners’ need for confidentiality with the

operator’s need for the requested information

36 FMSHRC Page 2116

 With both of these core concepts in mind – the need for miners to make safety 

complaints with no fear of reprisal, and the need for mine operators to fully investigate 

safety complaints – we now turn to a balancing of these important interests.
13 Counsel for the miners appears to agree with this general approach, stating at oral

argument that “it’s important to allow . . . the operator to collect enough information to take

action on a safety hazard while still balancing the protection for miners.” Oral Ar. Tr. 77.

To determine whether Emerald interfered with Franks’ and Hoy’s protected rights, we

balance the operator’s right to obtain information about an important safety matter with the

rights of Franks and Hoy to make confidential safety complaints. The Secretary articulates this

process in his proposed test by suggesting that, for the operator to prevail, its actions must

present a “reason whose importance outweighs the harm caused to the exercise of protected

rights.”13 Sec’y Amicus Br. at 10.

We conclude that the operator’s need to obtain the names of the firebosses and other

pertinent information from Franks and Hoy in the circumstances of this case does not outweigh

the harm to the miners’ protected rights. We fear that other miners at Emerald’s No. 1 Mine, like

Franks, will decide that reporting violations of the Mine Act “[isn’t] worth it.” We are

convinced that the manner in which MSHA conducted the section 103(g) interviews, along with

the multiple interrogations and the resulting suspensions, created an atmosphere where miners

will be extraordinarily reluctant to complain to a safety committeeman or file a section 103(g)

complaint with MSHA. This will work to the detriment of the miners’ safety, because some of

the most important safety mechanisms created by Congress will have been brought to a halt at

this mine.

We articulated a similar concern in our decision in Secretary of Labor on behalf of

Pendley v. Highland Mining Company, 34 FMSHRC 1919 (Aug. 2012). Although we applied

the traditional Pasula-Robinette standard in that case, we recognized that some acts by operators

are materially adverse to miners when they are “‘harmful to the point that they could well

dissuade a reasonable worker from making or supporting a charge of discrimination.’” Id. at

1932 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). We

emphasized that the Mine Act “recognizes that retaliatory action does not only affect the targeted

miner, but other miners on whom it could have a chilling effect regarding the reporting of safety

hazards.” Id.

In weighing the concerns at stake here, we must examine what information the operator

had already obtained and what additional information it needed to conduct an adequate

investigation into the allegations of unsafe practices at the mine. Obviously the identity of the

firebosses was critical to this inquiry. In evaluating Emerald’s need to extract this information

from Franks and Hoy, however, we are mindful that the operator was not completely handcuffed

by their refusal to reveal the firebosses’ identity. Management, by speaking with safety

committeeman Dave Moore, could have determined the specific date and shift which Moore had

investigated, and thus discovered the identities of the firebosses working those shifts. 

36 FMSHRC Page 2117
14 In balancing these two important interests, we also ask whether the operator’s actions

were narrowly tailored enough to promote its business justification without undue interference to

the rights of the miners. In the context of the NLRA, for example, it has been held that a

company rule must be “narrowly tailored to achieve the employer’s purpose without chilling

protected activity.” Guardsmark, LLC v. NLRB, 475 F.3d 369, 376-376 (D.C. Cir. 2007)

(quoting Cmty. Hosps. of Cent. Cal. v. NLRB, 335 F.2d 1079, 1088 (D.C. Cir. 2003)). Given

Franks and Hoy’s reaction to the MSHA interviews, it should have been clear to the operator that

the way it conducted its subsequent investigation would hardly foster an atmosphere conducive

to Franks and Hoy providing the names of the offending firebosses. In addition to safety

manager Shifko, also present for Emerald at these meetings was human resources representative

Catherine Hayhurst. As before, union officers were present, but Swetz testified, they were there

to protect the interests of the accused firebosses. Tr. 149-50. 

Furthermore, Shifko testified that Moore told him that he had received a “generic” complaint

about inadequate preshift exams and had investigated and found no merit to the complaint. 

Tr. 94-95. At that stage of its investigation, the operator could have reviewed the particulars of

Moore’s investigation to determine if there was any merit to the allegations. Thus, although

Emerald’s investigation was admittedly made more complicated by Franks’ and Hoy’s refusal to

name the examiners, the inquiry was not rendered impossible by their reluctance to accuse a

fellow miner during the operator’s investigation. Emerald had other avenues for obtaining this

information, and this is an important consideration as we compare its need to make Franks and

Hoy reveal the names with the long-term ramifications such a demand would have on miners’

safety complaints in the future.

Thus, although the operator has raised a serious concern, and on a different factual record

the operator’s need for information might tip the scales in its favor, here we find that Emerald’s

desire to make Franks and Hoy reveal the firebosses’ names did not outweigh the harm caused

by the chilling effects of its efforts. In other circumstances, where, for example, the inquiries

were held in private, one-on-one meetings, the union protection was undiluted, and there was no

background of an MSHA investigation gone awry by being conducted in such a public fashion,

an operator might prevail.14 But that is not the record in this case, nor the circumstances under

which Franks and Hoy were forced to navigate after attempting to make a confidential safety

complaint.

36 FMSHRC Page 2118
Given the particular context in which the events at the Emerald mine unfolded, we

conclude that the operator’s actions, if allowed to stand, would have a chilling effect on the

miners there, who, we believe, will think carefully before voicing a safety concern to MSHA or a

safety committeeman in the future. We believe that the operator’s need to obtain the information

was, in this case, outweighed by the potentially chilling effect of the investigations and

suspensions that occurred. Consequently, we would affirm the Judge’s decision finding a

violation of section 105(c) of the Mine Act.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

36 FMSHRC Page 2119
Commissioner Althen, dissenting:

The willful refusal of miners to cooperate with a safety investigation is contrary to the

fundamental principle of miner participation and assistance in achieving a safe and healthful

mining environment. Such conduct imperils rather than empowers miners and is properly

subject to discipline.

I.

Governing Legal Principles

A. Framework for Analysis

The National Labor Relations Act (NLRA) and the Mine Act protect miners against

discrimination by management because of activities protected by the respective laws. They also

protect miners against interference with the statutory rights provided by the respective statutes. 

Therefore, it is appropriate that the National Labor Relations Board and Federal Mine Safety and

Health Review Commission should look to one another’s enforcement of such rights for legal

principles related to the protection of miners. Sec’y on behalf of Gray v. North Star Mining, Inc.,

27 FMSHRC 1, 9 (Jan. 2005); see also Moses v. Whitely Development Corp., 4 FMSHRC 1475

(Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985). It is equally important to understand that

different concepts animate the relationship between management and miners in labor matters

versus safety matters.

The premise of the NLRA is that miners and management are adversaries with respect to

wages, hours, and terms and conditions of employment. Am. Ship Bldg. Co. v. NLRB, 380 U.S.

300, 317 (1965) (“Having protected employee organization in countervailance to the employers’

bargaining power, and having established a system of collective bargaining whereby the newly

coequal adversaries might resolve their disputes, the [NLRA] also contemplated resort to

economic weapons should more peaceful measures not avail.”); Tearing Down the Wall: The

Need for Revision of NLRA § 8(A)(2) to Permit Management-Labor Participation Committees to

Function in the Workplace, 26 Tex. Tech L. Rev. 1391, 1398 (1995) (“The NLRA is structured

on an adversarial model of labor relations that views the interests of management and labor as

mutually exclusive.”); David Rabban, Distinguishing Excluded Managers From Covered

Professionals Under the NLRA, 89 Colum. L. Rev. 1775, 1778 (1989) (“Labor relations and

labor law in the United States have been shaped by underlying assumptions about organizational

hierarchies and adversarial relationships between management and labor in the industrial work

place. The . . . [NLRA] posits a fundamental dividing line between labor and management.”).

The Mine Act is based upon a wholly different vision of the relationship between miners

and mine management regarding the safety and health of the workforce. Congress foresaw the

desirability of, and need for, cooperation between management and miners on safety and health. 

It provided for an active role for miners in assisting in the achievement of safe and healthful

work environments.

36 FMSHRC Page 2120
Section 2(e) of the Mine Act provides that “the operators of such mines with the

assistance of miners have the primary responsibility to prevent the existence of such [unsafe and

unhealthful] conditions and practices in such mines . . . .” 30 U.S.C. § 801(e) (emphasis added). 

Miner participation in safety and health matters was of such concern that the Senate report on the

Mine Act explicitly recognized the importance of active participation by miners in the “joint”

task of providing a safe and healthful workplace.

[T]he Committee recognizes that creation and maintenance of a

safe and healthful working environment is not the task of the

operator alone. If the purposes of this legislation are to be

achieved, the effort must be a joint one, involving the miner and

his representatives as well as the operator.

S. Rep. No. 95-181, at 18 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human

Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 606 (1978).

Indeed, the Senate Committee recognized the need for, and explicitly endorsed,

disciplinary actions as appropriate to effectuate the safety purposes of the Act:

Operators have the final responsibilities for affording safe and

healthful workplaces for miners, and therefore, have the

responsibility for developing and enforcing through appropriate

disciplinary measures, effective safety programs that could

prevent employees from engaging in unsafe and unhealthful

activity.

Id. (emphasis added). 

In construing the protections afforded miners under section 105(c), the Commission has

emphasized that participation of miners in safety is a goal of the Mine Act, finding the “Mine

Act was drafted to encourage miners to assist in and participate in its enforcement.” Sec’y on

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2789 (Oct. 1980), rev’d on other

grounds 663 F.2d 1211 (3d Cir. 1981).

The Commission has not merely endorsed cooperation and participation by miners. It

has accepted the directive of the Senate Report and made disciplining miners an integral part of

operators’ duties under the Mine Act. For example, to comply with 30 C.F.R. § 77.1710(g)

regarding fall protection, an operator not only must provide fall protection and train employees

to wear safety belts but also must show that it has “engaged in sufficiently specific and diligent

enforcement of the safety belt requirement to discharge its obligation under the standard.” 

36 FMSHRC Page 2121
1

 The Judge attempts to “distinguish” Pack on the grounds that, in Pack, the operator had

a written policy requiring the reporting of dangerous conditions. The real distinction between

this case and Pack, which makes this case even more compelling, is that here the miners

voluntarily reported through MSHA a dangerous practice and then refused to cooperate in the

investigation and correction of such ostensible danger. It is untenably inconsistent with section

2(e)’s reference to the assistance of miners to suggest a written policy is the difference between a

(continued...)

Sw. Ill. Coal Corp., 7 FMSHRC 610, 612 (May 1985); Austin Power, Inc., 9 FMSHRC 2015,

2020 (Dec. 1987) (“the Commission concluded that section 77.1710(g) mandates that an

operator establish a program requiring the wearing of safety belts and lines where dangers of

falling exist and enforce the requirement diligently.”).

Thus, the Commission has demanded that operators discipline employees for choosing

not to protect themselves. It would be odd if management is required to discipline miners for

choosing not to protect themselves but must allow miners to decide not to protect fellow miners

by choosing not to participate fully and honestly in a safety investigation.

Enforcement of discipline in the context of a refusal to answer questions in a safety

investigation accords not only with the purposes of the Mine Act but also clear and commanding

Commission case law. Secretary on behalf of Pack v. Maynard Branch Dredging Co., 

11 FMSHRC 168 (Feb. 1989), aff’d, 896 F.2d 599 (D.C. Cir. 1990), is on point. In Pack, the

Commission upheld the discharge of a security guard who failed (as opposed to refused) to

inform the operator of a safety violation during his shift and then reported it directly to MSHA.

The Commission spoke broadly about the duty of employees to the safety of themselves and

other workers, holding:

It is beyond dispute that a mine operator has the right to hire

individuals whose job duties include the reporting of dangerous

conditions. The Mine Act itself recognizes the importance of such

an arrangement. While section 2(e) of the Mine Act provides that

mine operators have the primary responsibility to prevent unsafe

conditions in mines, that section adds that miners are to provide

assistance to operators in meeting that responsibility. It would

make little sense to assert that an operator may not receive such

assistance because a miner elects instead to report such a condition

only to MSHA. . . . [I]t would prohibit an operator from

disciplining a pre-shift examiner who, rather than reporting

dangerous conditions to the operator, chose instead to report to

MSHA, while the miners on the incoming shift entered the mine

unaware of the dangers. We do not believe this is what antidiscrimination provisions of the Mine Act contemplated.

Id. at 173.1

36 FMSHRC Page 2122
1

(...continued)

miner cooperating in safety investigations and choosing to permit perpetuation of a danger

through a deliberate refusal to cooperate.

Obviously, if a safety investigation is a pretense for interference with statutory rights or a

means to discriminate against a miner because of protected activity the action is unlawful. 

However, in situations where an investigation is warranted and legitimate, the assistance of

miners in reporting unsafe conditions or practices and responding to questions about reports of

unsafe working conditions fulfills the basic tenet of Congress that miners assist and participate in

achieving a safe and healthful workplace. Perforce, if miners may be required to report

dangerous conditions, they may be required to provide information to management about the

conditions once they have reported them.

2. Proof of Unlawful Discrimination

A complainant alleging discrimination under the Mine Act establishes a prima facie case

of prohibited discrimination by presenting evidence sufficient to support a conclusion that the

individual engaged in protected activity and that the adverse action complained of was motivated

in any part by that activity. See Driessen v. Nev. Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.

1998); Pasula, 2 FMSHRC at 2799; Sec’y on behalf of Robinette v. United Castle Coal Co., 

3 FMSHRC 803, 817-18 (Apr. 1981). The operator may rebut the prima facie case by showing

either that no protected activity occurred or that the adverse action was in no part motivated by

protected activity. See Robinette, 3 FMSHRC at 818 n.20. If the operator cannot rebut the

prima facie case in this manner, it nevertheless may defend affirmatively by proving that it also

was motivated by the miner’s unprotected activity and would have taken the adverse action for

the unprotected activity alone. Id. at 817-18 (citing Pasula, 2 FMSHRC at 2799-800); see also 

 E. Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying PasulaRobinette test).

Of course, circumstantial evidence may support a claimed violation of section 105(c). In

Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-11 (Nov. 1981), 

rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983), the Commission identified several indicia

of discriminatory intent, including: (1) knowledge of the protected activity; (2) hostility or

animus towards protected activity; (3) coincidence in time between the protected activity and the

adverse action; and (4) disparate treatment of the complainant. 3 FMSHRC at 2510. Further,

the Commission may find the proffered reason may be a pretext provided the claimant

establishes “(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did

not actually motivate [the discipline], or (3) that they were insufficient to motivate discharge.” 

Turner v. Nat’l Cement Co. of Cal., 33 FMSHRC 1059, 1073 (May 2011) (emphasis in

original).

Regarding inferences, the Commission has emphasized that inferences drawn by the

Judge are “permissible provided they are inherently reasonable and there is a logical and rational

connection between the evidentiary facts and the ultimate fact inferred.” Mid-Continent Res.,

36 FMSHRC Page 2123
Inc., 6 FMSHRC 1132, 1138 (May 1984); accord Garden Creek Pocahontas Co., 11 FMSHRC

2148, 2153 (Nov. 1989). Black’s Law Dictionary defines “inference” as “a conclusion reached

by considering other facts and deducing a logical consequence from them.” Black’s Law

Dictionary 897 (10th ed. 2014) (emphasis added). Inferences must be based upon findings of

fact followed by a logical and rational conclusion and may not be spun out of speculation or be

piled one on another to an inferred result that collapses under the weight of its own insubstantial

structure.

3. Proof of Unlawful Interference with Statutory Rights

A causal connection also must be proven to sustain a violation of section 105(c) of the

Mine Act for interference with a statutory right. In that respect, section 105(c)(1) provides: 

No person shall . . . interfere with the exercise of statutory rights of

any miner . . . because such miner . . . has filed or made a

complaint under or related to this chapter, including a complaint

notifying the operator or the operator’s agent, or the representative

of the miners at the coal or other mine of an alleged danger or

safety or health violation, . . . .

Consequently, in an interference claim, the Commission asks a question similar to a

discrimination case. Has the operator interfered with the exercise of a statutory right to make a

complaint and, if so, was such interference caused by the miner having engaged in protected

activity? However, a somewhat different standard is applied. The Commission stated in Moses,

4 FMSHRC at 1478-79, that:

We find that among the “more subtle forms of interference” are

coercive interrogation and harassment over the exercise of

protected rights. A natural result of such practices may be to instill

in the minds of employees fear of reprisal or discrimination. Such

actions may not only chill the exercise of protected rights by the

directly affected miners, but may also cause other miners, who

wish to avoid similar treatment, to refrain from asserting their

rights. This result is at odds with the goal of encouraging miner

participation in enforcement of the Mine Act.

In his amicus brief, the Secretary states that his test for interference “echoes” Moses but

is drawn from cases by the National Labor Relations Board for violations of section 8(a)(1) of

the NLRA. Asserting entitlement to deference, the Secretary contends that the test for an

“interference” violation should be whether:

(1) a person’s action can be reasonably viewed, from the

perspective of members of the protected class and under the

totality of the circumstances, as tending to interfere with the

exercise of protected rights; and

36 FMSHRC Page 2124
(2) the person fails to justify the action with a legitimate and

substantial reason whose importance outweighs the harm caused to

the exercise of protected rights.

Sec’y Amicus Br. at 10.

Because the Commission frequently emphasizes the need to look to the totality of the

evidence, there appears to be no, or only a virtually indecipherable, difference between the test

for interference established by the Commission and the first step of the Secretary’s test. The

Secretary’s test does contain a second articulated step of a justification that requires weighing

any harm caused to protected rights against a legitimate and substantial reason for the inquiry. 

However, the Commission certainly did not intend in Moses to dismiss the possibility of finding

an overarching purpose from the imposition of discipline as compared to any chilling effect.

The Secretary correctly emphasized the need for the Commission’s Judges and the

Commission itself to review the totality of the evidence lest we be tempted to apply the four

indicia of discrimination articulated in Chacon without considering that, looking at the totality of

the evidence, facts may cut against discrimination. Therefore, in cases under section 105(c), the

Judges and Commission must review the totality of the evidence.

4. Substantial Evidence

In considering the presence of substantial evidence, we review the totality of the

evidence. We must affirm a Judge’s finding of fact if it is supported by substantial evidence. 

Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to

support [the Judge’s] conclusion.” Consolidation Edison Co. of N.Y. v. NLRB, 305 U.S. 197,

229 (1938). In assessing whether a finding is supported by substantial evidence, the record as a

whole must be considered including evidence in the record that “fairly detracts” from the

finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Rochester & Pittsburgh

Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison, 305 U.S. at 229).

II.

Appropriate Disposition of this Case

A. Substantial Evidence Does Not Support a Finding that the Operator Discriminated

Against Franks and Hoy Because of Protected Activity.

Review of the Judge’s discussion of the Chacon factors and the totality of the record

demonstrates substantial evidence does not support the Judge’s decision that protected activity

36 FMSHRC Page 2125
2

 Commissioners Young and Cohen essentially adopt and re-state the Judge’s decision.

Little need be said with specific reference to their opinion

3

 Notably, the Judge did not find that the operator discriminated against Franks and Hoy

because the operator suspected that Franks and Hoy filed the section 103(g) complaint. 

Commissioners Young and Cohen state: “Both the MSHA investigation and Emerald’s internal

investigation were in response to the filing of an anonymous section 103(g) complaint.” Slip 

op. at 12. As will be noted below, there is no evidence that the operator asked any question or

sought any information related to the filing of the 103(g) complaint.

4

 Because substantial evidence does not support a finding that protected activity partly

motivated the disciplinary action, it is not necessary to discuss the operator’s affirmative

defense. If there were, the consideration would be whether the operator would have been

motivated to impose discipline based upon an insubordinate refusal to cooperate with a safety

investigation of a complaint of substantial safety hazards. On these facts, the operator certainly

would not and should not have permitted miners to walk away from their obligation to cooperate

with a safety investigation.

motivated the one week suspensions of Franks and Hoy.2

 Moreover, if it were possible to find

such motivation, the operator successfully asserted an affirmative defense.

1. The Judge’s Decision

The Judge does not find that a willful refusal to answer questions in a safety investigation

is protected. Instead, apparently assuming that such a refusal would warrant discipline, the

Judge finds the operator’s assertion that it disciplined the miners for their refusal to respond was

a pretext. The Judge finds that the real reason for the discipline was “for making a safety

complaint and participating in the 103(g) investigation.” 35 FMSHRC at 1705.3

There is no dispute that Franks and Hoy willfully refused to identify the firebosses with

respect to whom they claimed to have direct evidence of dangerous malfeasance. Further, there

is no direct evidence that the operator discriminated against Franks or Hoy on the basis of

protected activity. Therefore, as the Judge realized, a case against the operator could only be

built upon reasonable inferences drawn from circumstances showing the asserted reason for

discipline was a pretext.

Consequently, the operator may be found to have violated section 105(c) only if

substantial evidence supports a finding that circumstantial evidence permits an inherently

reasonable inference that the discipline was at least partly motivated by protected activity – that

is, protected activity rather than Franks and Hoy’s outright and repeated refusal to identify

wrongdoers. See Turner, 33 FMSHRC at 1073.4 Further, there must be a logical and rational

connection between evidentiary facts and that ultimate inferred fact. Mid-Continent, 6 FMSHRC

at 1138. The Judge below considered the four Chacon factors before ultimately basing an

inference of pretext upon one finding of disputed fact.

36 FMSHRC Page 2126
5

 Typically, in a pretext case, there is protected activity and then a subsequent entirely

distinct incident close in time for which the operator takes adverse action. For example, in

Moses, 4 FMSHRC at 1475, a bulldozer overturned on June 19 and an MSHA inspection

occurred the next day. Thereafter, an operator representative told Moses that he suspected

Moses had informed MSHA of the bulldozer overturning. Near the end of June, Moses was laid

off due to a shutdown dozer. When Moses went to the operation on July 3 to see if he still had a

job, he was offered a job other than his normal work. After an argument, he was discharged. In

that case, time is a factor because an entirely separate and distinct incident was blamed for the

discipline.

a. Timing

The Judge correctly finds the suspension was close in time to protected activity – namely,

volunteering information to the inspector conducting the 103(g) inspection and complaining that

belt inspections had not been conducted. However, the timing factor obviously is insignificant in

this case because the protected activity and unprotected activity occurred virtually

simultaneously.

In their first meetings with MSHA, Franks and Hoy engaged in protected activity by

vocalizing their complaint. Immediately thereafter, in the same meeting, they engaged in

unprotected activity by refusing to name the firebosses with respect to whom they claimed actual

knowledge of malfeasance.

There is no significance to the fact that the discipline was close in time to the protected

discussions with MSHA because the reason asserted for the discipline occurred essentially at the

very same moment. Thus, from a timing perspective, the discipline makes sense for the

unprotected refusal to provide names of the alleged malefactors.5 In the same meeting, Franks

and Hoy crossed a line between protected and unprotected activity. They were then disciplined

for the unprotected activity. See Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir.

1981), rvg. Pasula, 2 FMSHRC 2786 (Oct. 1980). The timing of the discipline does not support

a finding of a violation.

b. Hostility and Harassment

The Judge found the operator showed “hostility” towards Franks and Hoy by

interviewing them on several occasions and “harassing” them. The Judge does not cite any

evidence in support of that conclusion, except by finding hostility and harassment in

management meetings twice with Hoy and three times with Franks.

Hoy was first interviewed by MSHA, not the operator, on October 4. Jt. Stip. 31. 

Operator and union representatives were present. MSHA asked Hoy if he was comfortable with

having everyone in the room, and he responded affirmatively. Tr. 31. Hoy did not recall

whether the MSHA representative told him that he could talk to him confidentially. However,

Hoy did recall that the MSHA representative gave him his office and cell telephone numbers –

36 FMSHRC Page 2127
6

 At the hearing, Hoy testified that he might have been interviewed on another occasion

in late October, but he could not, or at least did not, provide any date or otherwise testify about

such a possible interview. Tr. 20.

7

 The Judge mentions that Hoy testified that another miner told him that “he had a target

on his back after making the complaint.” 35 FMSHRC at 1704. The Judge also noted in the

Background section of the decision that the miners had alleged that they were “targeted” in their

complaint. Id. at 1697. Regarding the “targeting” testimony, it is notable that firebosses at this

operation are hourly employees represented by the union. From Hoy’s testimony, it is obvious

that if there was a “target on his back” it was from fellow hourly employees. Hoy testified that

he complained to MSHA about the remark based upon assurances that he would not face

retaliation from anyone for meeting with MSHA. Tr. 40-42. However, MSHA did not respond

to his call. It is not conceivable that, if MSHA thought management had placed a “target on his

back,” it would have ignored Hoy’s complaint. Other testimony in the record demonstrates

Franks and Hoy were concerned about retaliation from other hourly employees. Tr. 38, 41, 48.

numbers that Hoy later used. Tr. 31, 41. There is no evidence in the record that a management

representative spoke during that meeting.

MSHA asked Hoy to name the firebosses with respect to whom he claimed to have

personal knowledge and documentary evidence of malfeasance. Hoy refused to name any

firebosses and refused to produce any records. Jt. Stip. 35.

The operator interviewed Hoy twice – on October 20 and November 9.6 On October 20,

he was interviewed by William Schifko, Emerald’s compliance manager, and Christine

Hayhurst, a human resources supervisor. Hoy was accompanied by two union representatives –

Messrs. Swetz and Scott. Thus, there were two management representatives and two union

representatives present. Jt. Stip. 42. On November 9, Hoy again met with operator

representatives and was again accompanied by a union representative. Jt. Stip. 48.

The record does not reflect the length of these meetings or much of what was actually

said. The record does show that, just as Hoy had refused to provide the names of the firebosses

to MSHA, he refused to provide their names to the operator and refused to give a date of any

unperformed belt examination. Jt. Stips. 42, 48.

The record does not reflect any harassing or hostile statements by any manager in the

meetings. Nor does the record contain testimony by Hoy that he felt hostility or harassment at

the meetings. Obviously, a finding that the mere fact of a safety investigation is per se hostile or

harassing would be wholly at odds with the Mine Act’s presumption of participation and

assistance by miners in safety and health matters.7

The same pattern applies to the interviews of Franks, except he was interviewed three

times. He also was interviewed by compliance manager Schifko and human resources

supervisor Hayhurst and was assisted by union representatives at every meeting. Indeed, in his

36 FMSHRC Page 2128
8

 The record does reflect minor sarcasm by Franks. Tr. 48, 54.

complaint, Franks expressly notes that, with respect to the October 24 meeting, union

representative “Scott attended at Franks’[] request.” Compl. of Discrim., Ex. A, at 5, ¶ 16. Like

Hoy, Franks did not testify that he ever expressed any discomfort with the meetings. Again,

there is no evidence in the record of hostility or harassment or insulting statements by a

manager.8

Although Franks and Hoy voluntarily complained of malfeasant firebosses and the same

complaint had been made in the 103(g) complaint, the record does not reflect that the 103(g)

complaint itself, including who may have filed it, was raised at any of the meetings, including

the MSHA interview. Thus, there is no evidence that Franks or Hoy were “grilled” by

management, threatened by them, yelled at, or in any other way harassed or treated with

hostility.

Going further, the record does not reveal that Franks or Hoy provided management with a

reason for refusing to give the names. At the hearing, after they had obtained first-rate

professional representation, they asserted the reason they refused to answer was they thought

they were protected by 103(g). However, there is no evidence that they ever asserted such a

reason during their meetings with MSHA or the operator.

Summed up, the Judge found hostility and harassment but there is no evidence, none, of

any hostile statements or actions other than the Judge’s conclusory finding of harassment from

two and three brief interviews, respectively, by appropriate managers with Franks and Hoy

accompanied by their union representatives. From the record, therefore, it is only possible to

discern a professional approach towards seeking important safety cooperation needed by the

operator. There quite simply is no record evidence of hostility, let alone substantial evidence, of

such treatment.

c. Disparate Treatment

The Judge found that Franks and Hoy suffered disparate treatment as compared to other

miners. The theory is that Franks and Hoy, who complained about firebosses were disciplined,

whereas other miners who did not complain about firebosses were not disciplined.

No weight may be placed on this patently irrelevant observation. There is no allegation

by Franks or Hoy or other evidence that any other miner refused to cooperate with the

investigation. Thus, the record does not suggest any refusal to answer questions by those

employees. There is no evidence the other miners were uncooperative in any way or refused to

answer any question.

Because the other miners did not engage in conduct similar to the refusals of Franks and

Hoy, there was no basis for disciplining cooperating miners. The Judge engages in wholly

unsupported speculation that the reason for different treatment was that Franks and Hoy said

36 FMSHRC Page 2129
9

 The “knowledge” factor may be satisfied even if a claimant did not actually engage in a

protected activity if the operator actually suspected the claimant of protected activity and took

adverse action toward the miner because of that suspicion. Moses, 4 FMSHRC at 1480 (“[t]he

complainant establishes a prima facie case by proving that (1) the operator suspected that he had

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

suspicion). Here, suspicion of protected activity did not play a role in the Judge’s decision as the

decision is based upon the protected activity of talking with an inspector during the 103(g)

investigation and operator’s own investigation. The Judge’s decision is not based upon

speculation that the operator might have suspected Franks and Hoy of having filed the 103(g)

complaint. There is no evidence in the record that the 103(g) complaint, its genesis, or any other

aspect was discussed in the interviews with the operator or, for that matter, with MSHA.

they had evidence of misconduct by firebosses when the logical reason is that the others

cooperated whereas Franks and Hoy refused. Different treatment of miners who conduct

themselves in different ways – some cooperating with the investigation and others not

cooperating – does not support an inference of discrimination. If anything, it supports an

inference that the disciplining of Franks and Hoy was based upon their refusal of cooperation.

d. Knowledge of the Protected Activity

Knowledge, the last of the four indicia of Chacon, is usually considered in the context of

knowledge of the protected activity. If an operator does not know of the protected activity, it

could not have been discriminating against the miner on the basis of that activity.9 In this

respect, such knowledge is as irrelevant to this case as timing. The operator gained knowledge

of the protected activity and unprotected refusal to cooperate at virtually the same moment.

Here, the entire weight of the decision rests upon the Judge’s conclusion that the operator

knew or could/should have known the identities of the allegedly malfeasant firebosses. Without

explaining her view, the Judge summarily concludes it was not necessary to insist that Franks

and Hoy provide the identities. Thus, the Judge finds two or three interviews by the operator to

be inherently hostile, harassing, and discriminatory. Essentially, the Judge’s entire finding of

discrimination is based upon this one unexplained finding.

Assuming the Judge is correct that the names were or should have been known by the

operator, simply knowing the names of the firebosses is not sufficient to permit an authoritative

response by the operator to the misconduct by the firebosses. It is vitally important that the only

witnesses claiming actual, direct knowledge of the malfeasance step up to the plate. Disciplinary

action could not be taken against any fireboss without the cooperation of Franks and Hoy – that

is, without their willingness to name the firebosses.

36 FMSHRC Page 2130
10 Commissioners Young and Cohen remark that there was no evidence that, before this

incident, the operator had disciplined employees for refusal to cooperate. Slip op. at 16. This

remark does not counter the evidence that the operator discharged a foreman and an hourly

employee for failed examinations. Tr. 82. Surely, the Commissioners are not suggesting that the

operator later discharged a foreman and, separately, an hourly employee for failing to make

examinations as a means of defending this case. The evidence of the seriousness with which the

operator treats such failures to examine is probative regarding the rationality of inferring

discrimination entirely on the basis that the operator had indirect and unusable allegations of

malfeasant firebosses.

The testimony is indisputable that the operator disciplines miners for failing to make

proper examinations.10 The operator discharged a foreman and an hourly employee for not

making proper examinations. Tr. 82, 141. Indeed, the discharge of the foreman for an

insufficient examination arose out of a complaint by an hourly worker. Tr. 82. Additionally, as

the Judge surely understands and as the local union president testified, hearsay evidence would

not support a disciplinary action against firebosses, especially when they would be represented

by the union in a grievance proceeding. Tr. 140. Thus, more than sufficient evidence was

produced showing a legitimate reason for the direct witnesses to identify malfeasant firebosses. 

The Judge erroneously failed to consider or discuss that evidence and simply dismissed any need

for Franks and Hoy to cooperate.

Finally, the Judge also found the operator failed to acknowledge the “right” of Franks

and Hoy to make their complaint through their union representative rather than directly to

management. 35 FMSHRC at 1704. Again, the Judge is incorrect. The operator agreed that

safety complaints may be made directly to management or through a union representative. So

far as it goes, that was fine. However, the initial expression of a complaint had little or nothing

to do with the safety investigation that necessarily follows such a complaint.

Even presuming Franks and Hoy complained to the union representative, gave him the

names, and he gave the names to management, a follow-up investigation was inevitably

necessary, after MSHA brought Franks and Hoy to the attention of the operator. The

Commission has instructed MSHA to examine for failures of the operator’s supervision, training,

or disciplining of miners. S. Ohio Coal Co., 4 FMSHRC 1459, 1464 (Aug. 1982) (“[W]here a

rank-and-file employee has violated the Act, the operator’s supervision, training, and

disciplining of its employees must be examined to determine if the operator has taken reasonable

steps to prevent the rank-and-file miner’s violative conduct.”).

An operator cannot let allegations of failures to conduct belt examinations go

uninvestigated and unpunished. Yet, it could not discipline the firebosses without direct

evidence of the malfeasance. It was necessary for the operator to have direct evidence of the

malfeasance to take action and the only persons claiming to have such evidence were Franks and

Hoy. It cannot rationally be inferred that the necessary follow-up investigation by management

to a claim of serious malfeasance, conducted in an appropriate manner through two and three

36 FMSHRC Page 2131
11 It should be obvious that failures by MSHA cannot be held against the operator. 

However, in footnote 12, Commissioners Young and Cohen appear to link actions by MSHA and

the operator. Again, they cite no evidence; they just cite MSHA’s actions as “troublesome” and

link MSHA to the operator. This irrelevant side-remark is as misleading as the clearly erroneous

suggestion that Hoy’s call to MSHA about a target on his back might refer to the operator when

all the evidence demonstrates that the only rational understanding was that, as the firebosses are

hourly employees and fellow union members, it was co-workers, if anyone, who were

“targeting” him. See supra n.7.

interviews, respectively, by appropriate personnel with union representatives present is hostile,

harassing, and discriminatory.

It is apparent, therefore, that even without considering the totality of the evidence, there

is insufficient evidence that an inference of discrimination is inherently reasonable through a

logical and rational connection between the evidentiary facts and the ultimate facts inferred. 

When considered in the context of the totality of the evidence, the Judge’s finding of

discrimination completely collapses.

2. The Totality of the Evidence

The Judge ignored a host of factors cutting against an inference of discrimination. The

entirety of the record undercuts the brief and conclusory basis cited by the Judge for inferring

discrimination.

It is true that MSHA was conducting its investigation pursuant to a section 103(g)

complaint. However, miners Franks and Hoy voluntarily told MSHA of their complaint.

Whether they did not request anonymity or were not offered that opportunity by MSHA, the fact

is that MSHA informed the operator of their identities and complaint. There is no evidence that

the operator sought them out. Nor is there any evidence that, after the meeting called by MSHA,

the operator made any inquiry of Franks or Hoy relating to the 103(g) complaint. 

Further, upon Franks and Hoy saying they were comfortable with the presence of

operator representatives, it was MSHA that permitted the operator to attend its interviews of the

miners. The operator took no action whatsoever to discover the identity of any complaining

miners. They were presented by MSHA with the names of Franks and Hoy. That disclosure by

MSHA and MSHA’s handling of the meeting cannot be held against the operator as evidence of

a discriminatory motive or improper action by the operator.11

Although MSHA could not or, in any event, did not act upon Franks and Hoy’s complaint

after they refused to identify any offending firebosses, the operator had a right, or even a duty, to

continue the investigation. If an operator failed to investigate miners’ allegations to MSHA of

neglect by a fireboss and, subsequently, a belt fire caused serious or fatal injuries to miners, a

regulatory typhoon properly would engulf the operator. An investigation conducted by the

operator into voluntary charges of serious safety misconduct was necessary and does not

36 FMSHRC Page 2132
comport with the Judge’s finding that the actions of the operator were a pretext to disciplining

Franks and Hoy.

Certainly, when Franks and Hoy complained of their concern about firebosses to a union

committeeman, MSHA, or the operator, they were engaged in protected activity. Further, as

MSHA and the operator interviewed them about their complaints they were protected. However,

they crossed an important, outcome determinative line from protected to unprotected activity

when they refused to assist in the operator’s investigation by refusing to name malfeasant

firebosses. This crossing is demonstrated, albeit in different circumstances, in Consolidation

Coal Co. v. Marshall. There, the United States Court of Appeals for the Third Circuit reversed a

Commission decision. The miner had crossed the line from protected to unprotected activity

when he decided to turn off a mining machine and announce that no one was going to operate the

machine. The court found “[t]he ‘real’ reason for his dismissal was that he turned off the

continuous miner machine. This activity was not protected by the Mine Act.” 663 F.2d at 1221.

Similarly, here, the totality of the evidence demonstrates that the real reason Franks and

Hoy were suspended was that they refused to identify non-performing firebosses. In the Third

Circuit case, the miner arbitrarily decided to attempt to shut down the operation; Franks and Hoy

decided that they would arbitrarily refuse to provide the critically important information to

support their complaint. Just as the miner in the Third Circuit case crossed the line from

protected to unprotected activity when he attempted to shut down the operation, Franks and Hoy

crossed the line from protected to unprotected activity when, having volunteered safety

information, they refused to protect themselves and their fellow miners by cooperating with the

operator’s investigation.

MSHA interviewed approximately 35 miners in its 103(g) investigation. Tr. 73. In

addition to attending many of those interviews, the operator interviewed an additional 15 or so

miners with respect to Franks and Hoy’s allegations after MSHA abandoned the investigation

upon Franks and Hoy’s refusal to cooperate. Tr. 76. Such extensive interviews simply do not

comport with the notion of using Franks and Hoy’s refusal to answer as a pretext to impose

discipline.

Further, contrary to the Judge’s statement about hostility, the evidence regarding the

interviews, such as it exists, is that they were conducted by appropriate personnel (the

compliance manager and a senior human resources manager) without acrimony and in the

presence of the miners’ union representatives. In other words, the interviews were conducted in

a wholly appropriate manner with the miners’ rights to representation observed. Those actions

are also inconsistent with hostility, harassment, or discrimination.

Additionally, the evidence demonstrates that the decision whether to impose discipline

and what discipline to impose was made in a professional and dispassionate manner. When

asked how the decision was reached, the senior human resource professional described a meeting

36 FMSHRC Page 2133
12 Regarding an affirmative defense, if one were to somehow conclude that

discrimination played some part in the imposition of discipline on Franks and Hoy, an

(continued...)

Well, been doing this for about 24 years. The [other meeting

participants] probably a lot longer. We took into the consideration

what the infraction was, that, you know, a message has to be sent

that safety is very serious, so we didn’t feel we could sweep it

under the rug when allegations of that nature were made. Through

talking with everyone, we were at three days to termination, and

we came up with seven days.

Tr. 104-105.

Finally, and most telling of all, at every point in the investigation, Franks and Hoy could

have avoided discipline by disclosing the names of firebosses whom they said were failing to

perform the important belt inspections. Franks and Hoy brought themselves into the

investigation by voluntarily and openly making the complaints to MSHA. They were willing,

they claimed, to give the names of the firebosses to the union and for the union to disclose the

names of the firebosses to the operator. MSHA brought them to the attention of management

and then walked away when Franks and Hoy refused to cooperate. It is incredibly far-fetched to

find that the operator somehow seized upon Franks and Hoy’s refusal to cooperate as a pretext to

“set up” discipline. MSHA brought them to the attention of the operator and at any moment,

Franks and Hoy could have given the name of the firebosses to MSHA or the operator and

avoided discipline.

Indeed, it appears that Franks and Hoy never even gave MSHA or the operator a reason

for refusing to do so. Their complaint refers to Franks’ initial meeting with MSHA Supervisor

Severin and states: “Schifko asked Franks why he would not provide a name or date and Franks

responded that he could not do so at that time.” Compl. of Discrim., Ex. A, at 4, ¶ 10.

The pertinent question here is: if Franks and Hoy had already provided the names and

knew the operator had the names, why did they refuse to give the names thereby avoiding

discipline? Their refusal to provide the names amounts to no more than saying “we don’t want

to.” They gave management virtually nothing to work with in terms of justifying or excusing

their lack of cooperation.

For all these reasons, the totality of the evidence leads to the conclusion that the miners

were suspended for, and only for, their willful refusal to cooperate in a necessary safety

investigation – that is, they refused to identify to management one or more firebosses whom they

said they personally observed failing to perform his/her/their duties. When they refused to

cooperate with a safety investigation with respect to which they claimed to be the only witnesses

with actual knowledge of the offenses, they crossed an important, outcome determinative line

between protected activity and unprotected activity.12

36 FMSHRC Page 2134

of senior managers to consider discipline (Tr. 104) and then explained how they arrived at a 

seven-day suspension:
12(...continued)

affirmative defense succeeds. Their refusal to provide critical information in an important and

ongoing safety investigation warranted discipline. The Commission has held that “[o]nce it

appears that a proffered business justification is not plainly incredible or implausible, a finding

of pretext is inappropriate.” Chacon, 3 FMSHRC at 2516. The Judge was not entitled to

substitute her personal business judgment for the business judgment of the operator. The

operator is entitled to prevail on an affirmative defense. However, given the totality of the

evidence, it is more appropriate to find that protected activity did not motivate the discipline.

13 Commissioners Young and Cohen find the actions of MSHA “troublesome.” Slip op.

at 12 n.12. The participation by MSHA and the Secretary in this case has indeed been curious. 

Initially, MSHA investigated a 103(g) complaint and found a number of violations. It was

during that investigation that Franks and Hoy voluntarily came forward to MSHA. MSHA

informed the operator of their identities and brought them into meetings that included the

operator. In light of the refusal of Franks and Hoy to cooperate, MSHA took no action on their

volunteered fireboss complaint. During the course of the meeting with Hoy, MSHA assured him

that no one would be permitted to retaliate against him. Yet, when Hoy informed MSHA that a

fellow hourly worker told him he had a “target on his back,” MSHA took no action to investigate

the workers threatening or otherwise harassing Hoy. Subsequently, MSHA investigated and

dismissed Franks and Hoy’s 105(c) complaint as meritless. However, two months after oral

argument and the Commission meeting on the case, the Secretary filed an amicus brief asserting

a desire for the first time since passage of the Mine Act to provide the Commission his

interpretation of interference with statutory rights under section 105(c). The Secretary also

provided, at greater length, a list of insubstantial reasons why the Secretary thought Franks and

Hoy had presented colorable interference claims. The Secretary’s amicus brief does not explain

whether the Secretary contacted or conferred with the MSHA personnel who had found Franks

and Hoy’s interference claims meritless. The Secretary does not explain the basis for the change

(continued...)

B. The Evidence Does Not Support a Finding of, or Remand for Consideration of,

Interference with Statutory Rights.

The Judge below did not enter any finding regarding Franks and Hoy’s claims of

interference with statutory rights in violation of section 105(c) and, thus, did not adjudicate that

claim. For that reason, the parties paid little attention to the issue of interference in their briefs. 

However, Franks and Hoy did reserve the issue in their brief to the Commission and asked for a

remand to permit the Judge to consider the issue. C. Br. at 34.

Thereafter, the Secretary appeared before the Commission via a late-filed, lengthy amicus

brief to take the position that Franks and Hoy had advanced colorable claims of interference that

should be adjudicated (Sec’y Mot. at 5) and to set forth the Secretary’s view of the basic

elements of a cause of action for unjustified interference. Sec’y Mot. for Leave to File an

Amicus Curiae Br. at 3 ¶¶ 5-6. The Secretary supported a remand for a review of “colorable”

claims of interference.13

36 FMSHRC Page 2135
13(...continued)

in position. Finally, while the Secretary must have re-examined the case in deciding to file an

amicus brief, the Secretary’s brief did not address MSHA’s finding that Franks and Hoy’s

discrimination claims are meritless.

The Secretary also asserted that the appropriate test of interference with statutory rights

under section 105(c) should be borrowed from the NLRB and provides that the Commission

should find impermissible interference if:

(1) a person’s action can be reasonably viewed, from the

perspective of members of the protected class and under the

totality of the circumstances, as tending to interfere with the

exercise of protected rights; and

(2) the person fails to justify the action with a legitimate and

substantial reason whose importance outweighs the harm caused to

the exercise of protected rights.

Sec’y Amicus Br. at 10. Despite the failure of the Judge to rule upon the issue, the record

demonstrates that a reasonable Judge could not find substantial evidence supporting interference

with statutory rights because of Franks and Hoy’s refusal to cooperate.

The first step in analysis is identification of the rights with which the operator assertedly

interfered. Although Franks and Hoy and the Secretary naturally word their designation of rights

slightly differently, they essentially identify the same alleged rights with respect to which they

assert the operator may have interfered. These are:

1. The right to file 103(g) safety complaints and/or other anonymous safety complaints and

maintain anonymity throughout the investigation process. Sec’y Amicus Br. at 32; C. Br. at 34.

2. The right to be protected from coercive questioning by advance notice of rights, identifying

specifically the rights applied by the NLRB in Johnnie’s Poultry, 146 NLRB 770, 775 (Apr.

1964), such as voluntariness. Sec’y Amicus Br. at 33-34; C. Br. at 34-35.

At the outset it is notable there is a high, perhaps insuperable, barrier to the Secretary’s

and Franks and Hoy’s argument that rights of the workforce might have been wrongfully chilled. 

Anthony Swetz, President of United Mine Workers of America, Local Union representing the

miners at the operation, testified at the hearing as the representative of the miners at the

operation. Tr. 6.

Testifying in his capacity as the official representative of the miners at the operation,

Swetz stated:

Q. And let me ask you -- we will sort of cut to chase. These two

individuals were suspended for seven days?

36 FMSHRC Page 2136
A. Correct.

Q. Do you disagree with that action by the company?

A. No.

Q. Why not?

A. I look at it, it's everyone there’s responsibility is for

everybody’s safety in that mine. During this very serious

allegation, we take this very seriously. Our local, myself, and the

safety committee have zero tolerance for any type of unsafe

activity, especially of this nature.

Tr. 138.

Swetz emphasized the danger of unexamined belts and the lack of any tolerance for

failures in that area. Tr. 138-40. From the local union’s testimony, it appears the miners

recognized their most important right is the right to a safe and healthful workplace and that

assistance and cooperation by miners is vital to assuring that right. Obviously, however, as the

Judge, the Secretary, and Chairman Jordan and Commissioner Nakamura ignore this testimony,

they do not accept the union’s testimony.

Therefore, it is necessary to consider fully the Secretary and Franks and Hoy’s arguments

for a remand and my colleagues’ decision to affirm the Judge in result. The Secretary’s

arguments, which capture Franks and Hoy’s arguments, are fully described in the Secretary’s

amicus brief. The Secretary’s first assertion is “the background of how the company’s internal

investigation came about could have created a coercive setting that would deter miners from

making future Section 103(g) complaints.” Sec’y Amicus Br. at 32. This appears intended to

support a notion that any investigation by the operator may have chilled the miners’ willingness

to make anonymous complaints via section 103(g) or by speaking directly with MSHA.

The obvious error is that the operator had nothing whatsoever to do with “how the

company’s internal investigation came about.” MSHA brought Franks and Hoy into the

investigation and brought them to the operator. The operator’s colloquies with Franks and Hoy

did not begin with an operator investigation. Franks and Hoy voluntarily complained to MSHA

outside the presence of the operator that they had personal knowledge of firebosses not

performing necessary examinations. It was MSHA that then brought the operator into the

investigation through meetings with Franks and Hoy. Jt. Stips. 15, 16, 33.

There is no evidence that the operator sought to find out the identity of the 103(g)

complainant(s). Indeed, no evidence whatsoever has been produced suggesting inquiries by the

operator at any time on that topic. No evidence is cited in the record that the operator directly or

indirectly, explicitly or implicitly, expressed or had a suspicion that Franks and Hoy had filed the

103(g) complaint. No evidence in the record is cited to show that the 103(g) complaint played

36 FMSHRC Page 2137
14 The Secretary interprets the second step of the NLRB standard for interference as

requiring a “business justification.” Sec’y Amicus Br. at 20. This demonstrates the danger of

simply accepting NLRB case law for Mine Act cases without refinement for the different

underlying purposes of the labor and mine safety laws. In the narrow sense that everything a

business does is a business decision, an operator’s duty to maintain a safety compliant work

environment is a “business” decision. However, it is not simply a decision; it is an obligation

imposed by law and ethical standards of today’s workplace. For a mine operator, the duty to

investigate a safety complaint is not a matter of a “dollars and cents” business decision. It is a

duty. Even if it were properly characterized as a “business” decision, there would be no more

pressing business obligation than maintaining a safety compliant workplace.

any role in the operator’s interviews – no evidence of any kind about a mention of 103(g) or that

any miner utilized his or her 103(g) right. The operator’s interviews sprang entirely out of the

voluntary statements of Franks and Hoy at meetings convened by MSHA.

It is ironic that the Secretary cites actions attributable to MSHA as grounds for finding

interference by the operator with statutory rights. Disclosure by MSHA of Franks’ and Hoy’s

identities is the sole genesis of the operator’s necessary investigation. If MSHA erred in its

handling of its investigation by bringing Franks and Hoy into an interview also attended by

management personnel, such error rests with MSHA. MSHA simply walked away from the

investigation when Franks and Hoy refused to name wrongdoers. The operator, charged by law

with preserving safety compliant mining conditions, simply could not ignore the complaints. 

This was not a “business” decision by the operator to continue the investigation but instead

recognition of its obligation to provide a workplace compliant with standards of safety.14

Second, the Secretary suggests that elements of coercion may have been present in two

ways, asserting: 

(1) “Emerald Coal managers asked miners directly whether they had information about

the firebossing allegation contained in the anonymous hazard complaint.” Sec’y Amicus Br. at

33. A complaint about firebossing was made in a 103(g) complaint. However, the operator’s

questions to the miners were about the information the miners volunteered to MSHA that they

had personal knowledge and documentary evidence of misconduct – the information that MSHA

turned over to the operator. No one knows who filed the 103(g) complaint but everyone knows

that the operator’s interaction with Franks and Hoy began with MSHA introduction of them to

the operator as part of the MSHA investigation.

At the risk of repetition, the transcript does not contain any evidence that the operator

ever said anything about the 103(g) complaint to the miners. The Commission has found: “[i]t

would make little sense to assert that an operator may not receive [cooperation regarding a safety

hazard] because a miner elects instead to report such a condition only to MSHA.” Pack, 11

FMSHRC at 173. A finding that the operator’s investigation of a condition reported in a 103(g)

complaint is interference with the rights of miners effectively would bar operators from

36 FMSHRC Page 2138
15 The Secretary goes so far as to say that one witness’ praise of the firebosses could be

taken as showing that the miners were being “untruthful” and, hence, were being coerced. The

Secretary does not suggest whether the coercion was coming from the operator or, as implied by

his claim that it was representing the firebosses, the union. Sec’y Amicus Br. at 24-25, 34.

undertaking potentially life-saving investigations, and is at odds with the purpose of the Mine

Act and an operator’s duties under it. 

Of course, such an investigation cannot be used by an operator in an effort to discover the

identity of a 103(g) complainant, but no evidence of such purpose has been cited here. When

MSHA presented the operator with witnesses claiming direct knowledge of potential lethal

misconduct, the operator could not ignore it.

(2) Because 45 other miners did not provide any evidence of failures by firebosses, the

Secretary argues: “the responses that miners gave during the company interviews could suggest

that a coercive dynamic was at play.” Sec’y Amicus Br. at 33. The Secretary conjures a

“suggestion” of coercion out of an investigation that included interviews by MSHA of

approximately 30 to 35 miners and operator interviews with 14 additional miners. One can

easily imagine what the Secretary’s argument would have been if the operator had not

interviewed other miners – the Secretary would contend that interference (and perhaps even

discrimination) was proven by the “focus” on Franks and Hoy – that is, other potential witnesses

were not interviewed.

A finding of interference cannot be premised upon a chain of unsupported speculation

including an implication by the Secretary that other miners lied during the interviews.15 Here,

the Secretary unacceptably speculates that (a) because two miners say they saw firebosses skip

inspections, (b) it must be true, so (c) other miners must also have witnessed it, and so (d) other

miners lied during their interviews, and (e) such lying must have been coerced by someone and,

(f) that someone must be the operator notwithstanding the Secretary’s voicing of suspicion that

the local union supported the firebosses. Findings of violations must be based upon a

preponderance of the evidence, not rank and unsupported speculation.

Third, Franks and Hoy, with the support of the Secretary assert that the interviews of

them should be deemed coercive because they were not advised of, or given by, the operator a

“right” to choose not to be interviewed. Hinging their argument on labor law, they apparently

argue that the interrogation of a miner about a critical danger to safety is inherently coercive and

that such coercion may be avoided only by advising miners that cooperation with the operator on

an important safety matters is discretionary. Incredibly, the Secretary charged with securing

mine safety actually supports Franks and Hoy’s argument, essentially suggesting a per se rule

that reporting of safety hazards and participation in safety interviews must be voluntary and the

operator must advise the miner of such voluntariness in advance:

[I]t does not appear from the record that Emerald Coal took steps

to minimize the potential chilling effect of its questioning on

36 FMSHRC Page 2139
hazard reporting to MSHA. It did not inform miners that

cooperation with the company investigation was voluntary, nor did

it appear to provide a way for miners to anonymously provide

feedback regarding the firebossing allegations contained in the

hazard complaint.

Sec’y Amicus Br. at 34.

In support of his position, the Secretary cites a decision of the Sixth Circuit approving a

decision of the NLRB finding an employer committed an unfair labor practice by instituting a

rule the effect of which would be to require employees to cooperate in management’s

investigation of unfair labor practice charges against it. Beverly Health & Rehab. Servs. v.

NLRB, 297 F.3d 468, 478 (6th Cir. 2002), enforcing 332 NLRB 347, 349 (2000). The Secretary

ignores Commission case law and, even more importantly, the profound differences between the

animating spirit of the NLRA and the Mine Act.

In Pack, the Commission rejected an argument by the Secretary that a rule requiring

miners to report unsafe conditions “chilled” their statutory rights. The Commission upheld the

discharge of a miner even though the miner had reported the danger to MSHA. Concurring in

part and dissenting in part, Commissioner Backley strongly remonstrated:

Elsewhere the Secretary states, “even where a miner believes that

an imminent danger exists Section 103(g) does not require the

miner to report that condition to the operator . . . .” Sec. Br. at 7.

I find the Secretary’s position on this issue to be perverse. 

The Secretary apparently condones the manner in which Mr. Pack

acquitted himself – leaving the mine knowing that a dangerous

condition existed, yet failing to warn oncoming fellow workers. In

her zeal to find a way to prevail in this case, the Secretary seems to

be willing to turn a blind eye toward the fundamental goal of the 

Act – to ensure that every miner does all that he can to make the

work environment safe.

Pack, 11 FMSHRC at 174.

In Swift v. Consolidation Coal Co., 16 FMSHRC 201 (Feb. 1994), the Commission

considered whether a safety program requiring the reporting of injuries was unlawful. The

Commission found the reporting of injuries was a protected activity. But, it also held that

requiring the reporting of injuries did not interfere with miners’ rights. Finding the program

lawful, the Commission hearkened back to Commissioner Backley’s opinion in Pack, and held:

In Secretary on behalf of Pack v. Maynard Branch Dredging Co.,

11 FMSHRC 168, 172 (February 1989), aff’d, 896 F.2d 599 (D.C.

36 FMSHRC Page 2140
16 Without doubt, reporting of injuries is a protected activity. Therefore, also without

doubt, requiring miners to report injuries and, as a result, face suspension or discharge is far

more likely to inhibit miners from engaging in protected activity than requiring that, when

miners make a safety complaint, they provide details permitting the operator to address the

complaint properly. Regarding the requirement for reporting injuries, the Commission found the

benefit of having miners do all they could to ensure safety resulted in the policy not being

facially invalid. If miners’ statements must only be made on the basis of voluntariness, then it

would appear all mandatory reporting programs, regardless whether stated in a written policy,

would be facially violative of section 105(c). Congress cannot have intended such a result.

Cir. 1990), the Commission rejected a similar argument as to the

chilling of reporting, raised against a company policy that required

employees to report dangerous conditions to the company. The

Secretary asserted that such a policy would intimidate miners from

exercising their rights under sections 103(g) or 105(c) of the Act. 

Id. at 172-73. The Commission held that the operator was entitled

to initiate such a policy that called for miner participation in the

maintenance of safety. Id. As Commissioner Backley stated in

Pack, a “fundamental goal of the Act [is] to ensure that every

miner does all that he can to make the work environment safe.” Id.

at 174 (concurring in part and dissenting in part).

Id. at 208.16

Apparently in the same spirit of zealousness, the Secretary again fails to appreciate the

fundamental difference between the NLRA and the Mine Act. The NLRA protects the right of

employees to take concerted action for their benefit against an inferentially adverse employer. In

Beverly Health, cited by the Secretary, the Sixth Circuit upheld an NLRB order against an

employer rule requiring an employee to answer the employer’s questions related to unfair labor

practice charges against that very employer. There is no semblance of applicability of such a

principle under the NLRA to requiring a miner under the Mine Act to report safety hazards or to

aid in an investigation into claims of acts of malfeasance that could result in a mine explosion. It

remains perverse for the Secretary to assert what would amount to a per se rule that miners’

cooperation in reporting safety hazards and cooperating with safety investigations must be

voluntary.

Having rejected the Secretary’s arguments, it is imperative to discuss the thoughtful

opinion of Chairman Jordan and Commissioner Nakamura. It appears they find three

“interferers” in this case – the local union or workforce, MSHA, and the operator. Reading their

opinion, one may feel some sympathy for Franks and Hoy whom Chairman Jordan and

Commissioner Nakamura find were classically put between a rock and hard place – that is,

between intimidation by fellow miners and the demand for cooperation by management. 

Moreover, Chairman Jordan and Commissioner Nakamura appear to find the operator least

culpable of the three interferers – the actions by MSHA were neglectful and actions by the union

36 FMSHRC Page 2141
17 Particularly troublesome are my colleagues’ characterization of the managers’

questioning as persistent. Slip op. at 28. In my opinion, two and three interviews, respectively,

of the miners does not fit the definition of “persistent.” This case likely would be before us even

if the two had been disciplined following the first interview. Secondly, my colleagues object to

the interviews being conducted by the compliance manager and a human resource representative

they call “high-ranking.” Slip op. at 28. The compliance manager was overseeing an important

safety investigation, and thus his participation was appropriate, and it was beneficial to have a

human resources professional present to assure proper practices. My colleagues would also have

the interviewers attempt to dispel coercion, by informing the miners of the purpose of their

questions. Slip op. at 29. My reading of the record is that Franks and Hoy were intelligent

persons who understood that management was attempting to determine which firebosses were

not performing their jobs so the situation could be addressed. Of particular concern is my

colleagues asking whether “the operator’s actions were narrowly tailored enough to promote its

business justification.” Slip op. at 32 n.14. In my opinion, to describe the operator’s interest in a

necessary safety investigation, aimed at fulfilling an operator’s duty to comply with the law, as a

mere “business justification,” downplays what was at issue in the investigation. Moreover, it is

hard to see how an interview consisting of one question – who are the malfeasant firebosses? –

could be more narrowly tailored. Finally, I take issue with the relevancy of NLRB cases cited in

my colleagues’ opinion for support. Multi-Ad Services, Inc. v. NLRB, 255 F.3d 363 (7th Cir.

2001), involved actually coercive questioning (including a suggestion that the employee quit)

regarding concerted, protected labor matters, while Stoody Co., 320 NLRB 18 (1995), arose out

of wholly different facts that are irrelevant to this Mine Act case.

or workforce were intentional. Chairman Jordan and Commissioner Nakamura reiterate that they

do not impute any discriminatory intent to the operator or MSHA. Slip op. at 26.

Their opinion premises operator interference upon a duty to understand and accept the

difficult position of Franks and Hoy. They essentially find that the operator interfered with the

miners’ rights by failing to realize and accommodate that, if Franks and Hoy were required to do

their duty and cooperate on safety, other members of the local union, fearing they also might

someday have to do their duty, would not make confidential safety complaints. I have some

differences with a few specific points in their opinion.17 But, their basic position gives reason to

pause. Expression by miners of safety concerns are an important part of their duty to assist and

participate in achieving compliance with the Mine Act. Therefore, as my colleagues correctly

observe, actions by management that chill the willingness of miners to present safety concerns

raise issues under section 105(c), even if such result is not intended.

However, on the basis on the totality of the evidence and especially given the seriousness

of the allegations against firebosses, I would find that the operator’s investigation did not violate

section 105(c) under either prior Commission case law or the test espoused by the Secretary. 

Thus, I would not find a section 105(c) violation.

First, errors by MSHA and naked intimidation by co-workers is an unsuitable basis to

find the operator chilled the reporting of safety complaints at the mine. To do so would be

36 FMSHRC Page 2142
capitulation to thuggish behavior that seriously endangers miners and, unchecked, will continue

to inevitable tragic results – an unacceptable public policy.

Second, such a finding would place operators whose workers adopt clannish

characteristics in a legally untenable position. They cannot effectively investigate and take

action upon safety complaints, anonymous or volunteered, directed at individuals if they do not

have and cannot obtain admissible evidence on the culpability of the allegedly malfeasant miner. 

But, unlike MSHA, they should not and cannot ignore or just walk away from such claims

risking a tragic consequence for the workforce.

Further, I do not find the operator’s action could or will significantly chill the atmosphere

for safety complaints aimed at other workers beyond its apparently nearly frozen state. Because

Franks and Hoy’s fears, and consequent desire for confidentiality, arose from the possible need

to identify other union workers, the operator’s action only could affect complaints involving

allegations of specific misconduct by other hourly employees.

Regarding that narrow subset of complaints, it is clear there was and will be, until the

culture of the mine changes, a desire for anonymity regarding such complaints. The operator’s

actions in this matter, however, will not increase the desire for anonymity but only may heighten

somewhat the care a miner may take in protecting that anonymity. On the other hand, this case

involves claims that deliberate misconduct by firebosses endangered the very lives of miners. 

Weighing any slight increase in vigilance for their anonymity by complaining miners against a

vitally important effort to get information that could prevent a mine disaster, I cannot find a case

of interference. This is not a “business justification” defense; it is a business and moral

imperative.

Congress recognized that operators need the cooperation of miners to fulfill the

operators’ duty to provide safe and healthful working conditions. Such cooperation is an integral

part of protecting the lives of miners. Although liability rests with the operator, safety is a

“joint” task. 

We must understand that, for operators to fulfill their primary obligation to safety and

health, they need from time-to-time to demand cooperation from miners through reporting unsafe

conditions and assisting with discovering unsafe working conditions and those responsible for

them. When a miner with expressed knowledge of unsafe conditions or practices, especially

when the alleged practice threatens a tragic disaster, arbitrarily refuses to identify those

responsible for the practices in response to management questioning, the miner should be

disciplined.

36 FMSHRC Page 2143
CONCLUSION

I am in the unenviable position of a one-person minority. Nonetheless, I find some

solace in the opinions of the Commission issued today.

The majority of the Commission has rejected the Judge’s finding of discrimination. 

Given the lack of substantial evidence of a motive to discriminate on the basis of protected

activities that is an appropriate result.

Chairman Jordan and Commissioner Nakamura’s opinion appears to be based upon the

unique and specific facts of this case. Therefore, I do not see disturbance to management

policies related to reporting safety or health hazards or injuries. Nor should it affect the

necessary cooperation between miners and management on matters of safety and health.

Third, the postulate that a coercive dynamic began with a misplaced loyalty to, or a fear

of, other miners (individually or through the local union) to protect malfeasant firebosses is a call

to action. The mining community will benefit if the entire community (MSHA, management,

unions, training programs, and schools) recognizes and acts on the need to train current and

prospective miners that solidarity is shown through performing jobs safely and through willingly

reporting those few miners who endanger the safety and health of their brothers and sisters. 

Miners must not fear retaliation from their co-workers for reporting safety failures of other

miners any more than fearing retaliation by an operator.

Perhaps, therefore, this case may spur action to increase miners’ awareness of their duties

to one another and, through that awareness, increase the joint efforts of labor and management to

achieve safe and healthful working conditions — a goal sought by Congress and all persons

interested in the welfare of our nation’s miners.

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 2144
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

August 5, 2014

CLOVERLICK COAL COMPANY, 

 LLC,

 Contestant

v.

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Respondent

CONTEST PROCEEDINGS 

Docket No. KENT 2012-699R

Order No. 8374442; 2/17/2012

Docket No. KENT 2012-700R

Citation No. 8374443; 2/17/2012

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner

v.

CLOVERLICK COAL COMPANY, 

 LLC,

 Respondent

CIVIL PENALTY PROCEEDING

Docket No. KENT 2012-943

A.C. No. 15-18241-286281

Mine: No. 1

DECISION AND ORDER

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, Department of Labor, 

Nashville, Tennessee for Secretary of Labor 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania for 

Cloverlick Coal Company, LLC

Before: Judge McCarthy

I. Statement of the Case

These cases are before me upon two notices of contest and a related petition for

assessment of a civil penalty under section 105(d) of the Federal Mine Safety and Health Act of

1977, 30 U.S.C. § 815(d). On February 17, 2012, in response to an anonymous 103(g) complaint

alleging dangerous conditions at the highwall, MSHA launched an investigation of Cloverlick

Coal Company’s No. 1 mine. As a result of the investigation, MSHA issued imminent danger

Order No. 8374442 to Cloverlick Coal Company, LLC (“Cloverlick”), which required the

withdrawal of miners from the site of a recent excavation at the surface of the mine. MSHA also

36 FMSHRC Page 2145

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1

 Cumberland contested the proposed civil penalty for Citation 8374444 and the case was

docketed as KENT 2012-999. On January 8, 2013, Administrative Law Judge Janet Harner

approved a settlement of this docket reducing the proposed penalty from $3,224 to $2,400. 

2

After hearing, the parties agreed to settle Citation No. 8399036, which alleged a

violation 30 C.F.R. § 75.220(a)(1). According to the terms of the proposed settlement, Citation

No. 8399036 remains unchanged, but the Solicitor justifies a reduction in penalty from $3,143 to

$2,500 by stating that there is a legitimate factual and legal dispute regarding gravity. I have

considered the representations and documentation submitted with the partial settlement, and I

conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i)

of the Act.

issued Citation No. 8374443, which alleged that the operator failed to maintain safe access to all

working places. On February 21, 2012, a duplicate safe access citation, Citation No. 8374444,

was issued to Cumberland Mine Service, Inc. (“Cumberland”), the contractor in charge of the

excavation and related construction project.1

 

On June 27, 2013, a hearing was held in Tazewell, Tennessee, after unsuccessful

settlement negotiations.2 Thereafter, post-hearing briefs were filed. The primary issues

presented are whether the section 107(a) imminent danger Order No. 8374442 was properly

issued to Clovelick, and whether Cloverlick violated 30 C.F.R. § 77.205(a), as alleged in

Citation No. 8374443. 

After careful review of the record, I find that the MSHA inspector was reasonable in his

determination that the conditions at Cloverlick No. 1 mine presented an imminent danger to

miners. As extant Commission and United States Court of Appeals precedent precludes review

of the Secretary’s discretion to issue a citation or order to a production operator or independent

contractor, or both, I affirm Order No. 8374442. Although a hazardous condition existed, I find

that Citation No. 8374443 alleges an impermissibly broad interpretation of the safe access

standard. Because the Secretary has failed to establish that safe access was not provided,

Citation No. 8374443 is vacated. 

36 FMSHRC Page 2146
3

 In resolving conflicts in testimony, I have taken into consideration the demeanor of the

witnesses, their interests in this matter, the inherent probability of their testimony in light of

other events, corroboration or lack of corroboration for testimony given, experience and

credentials, and consistency, or lack thereof, within the testimony of witnesses and between the

testimony of witnesses.

 On the entire record, including my observation of the demeanor of the witnesses,3

 and

after considering the post-hearing briefs, I make the following:

II. Stipulations

The parties agreed to the following stipulations.

1) Cloverlick is an “operator” as defined in § 3(d) of the Federal Mine Safety and

Health Act of 1977, as amended, 30 U.S.C. § 803(d), at the coal mine at which

the Order and Citation at issue in this proceeding were issued.

2) The Cloverlick No. 1 Mine, an underground bituminous coal mine at which the

Order and Citation were issued in this proceeding is subject to the jurisdiction of

the Mine Act.

3) Cumberland Mine Service is an independent contractor and is an “operator” as

defined in § 3(d) of the Federal Mine Safety and Health Act of 1977, as amended,

30 U.S.C. § 803(d), at the coal mine at which the Order and Citation at issue in

this proceeding were issued.

4) This proceeding is subject to the jurisdiction of the Federal Mine Safety and

Health Review Commission and its designated Administrative Law Judges

pursuant to Sections 105 and 113 of the Mine Act.

5) The individual whose signature appears in Block 22 of the Citation and Order at

issue in this proceeding was acting in his official capacity and as an authorized

representative of the Secretary of Labor when the Citation was issued.

6) A true copy of the Citation and Order at issue in this proceeding was served on

Cloverlick, as required by the Mine Act.

7) The total proposed penalty for the Citation in this proceeding will not affect

Cloverlick’s ability to continue in business.

8) Cloverlick had contracted with Cumberland Mine Service to perform work on its

stacker belt, which included installing additional supports so that the stacker tube

could be removed. Such work included excavation for the foundation of a new

support for the belt. Such excavation included use of a track-mounted excavator,

which is shown in the photograph marked as R. Ex. 11.

36 FMSHRC Page 2147
4

The stipulation has been changed to reflect a proposed assessment, rather than an 

assessment, and to correct the amount of the proposed assessment. 

5

In the interest of brevity, stipulations regarding the authenticity of exhibits have been

omitted. 

6

 In this decision, “Tr.” refers to the hearing transcript; “J. Ex. #” refers to the parties’

joint exhibits; “P. Ex. #” refers to the Secretary’s exhibits; “R. Ex. #” refers to the Respondent’s

exhibits. P. Exs. 1-9 and R. Exs. 1-12 were received into evidence. Tr. 13, 15, 103, 130, 167,

179, 222, 244.

9) As a result of the inspection, Cumberland received Citation No. 8374444 alleging

a violation of 30 C.F.R. § 77.205(a) on February 21, 2011. MSHA proposed a

penalty of $3,224. Cumberland paid a penalty of $2,400.4

10) Cloverlick Mine No. 1 is in non-producing status at the time of this stipulation.

Jt. Ex. 1.5

III. Findings of Fact

Cloverlick Mine No. 1 is an underground bituminous coal mine located near

Cumberland, Kentucky. Jt. Ex 1; R. Br. 2.6 In February 2012, Cloverlick contracted with

Cumberland to construct an elevated coal stacker belt to transport coal from inside the mine to

the pit area. In the pit area, coal is stockpiled until it can be loaded onto trucks and transported

off the property. Tr. 67; see also R. Ex. 1. The elevated belt was to be supported by cables

anchored to two support structures located at the top and bottom of a steep hill. R. Ex. 1. 

On February 17, 2012 at 12:10 p.m., MSHA received an anonymous safety complaint

through its 1-800 hotline. P. Ex. 2.; Tr. 40. The complaint alleged dangerous conditions at the

Cloverlick Mine No. 1. P. Ex. 2. Because the record of the complaint produced at hearing was

heavily redacted to protect the identity of the anonymous complainant, the only description of

the alleged hazard in the redacted complaint is that “[t]he wall has water coming out of it and

hazardous rocks coming down.” P. Ex. 2.

At 12:30 p.m., the complaint was forwarded to the MSHA district office and

subsequently emailed to Robert Rhea, MSHA field office supervisor in Harlan, Kentucky. P. Ex.

2, at 2. Based on the information in the initial complaint, Rhea drafted a “sanitized” complaint

that stripped out any facts that might identify the anonymous complainant. Tr. 42-43; see also P.

Ex. 2, at 1. The sanitized complaint lists Cloverlick as the operator, but Rhea wrote “N/A” to 

36 FMSHRC Page 2148
7

 Although the sanitized report lists assistant district manager Ed Sparks as the recipient

of complainant’s call, it is clear from the testimony that the call was made to MSHA’s 1-800

hotline, not directly to MSHA. Tr. 40; see also P. Ex. 2, at 2. The 1-800 hotline is managed by

an independent contractor. Tr. 40-41.

8

 It is not common for MSHA to notify a mining operator in advance of sending an

inspector to investigate a safety complaint. Tr. 55. In this situation, however, Rhea considered

the threat to miner safety to be serious and credible enough to warrant a departure from normal

practice. Id. 

9

 Although Brock testified that he issued the imminent danger order and citation after a

45-60 minute investigation, the citation, order, and his contemporaneous notes indicate that the

order and citation were issued at about 2:09 p.m., several minutes after Brock arrived on site. P.

Ex. 3; P. Ex. 4; P. Ex. 6, at 2-3; but see Tr. 71, 93-94, 119; P. Ex. 6, at 5 (indicating that Brock

had been at the mine for an hour before issuing the citation and order). In resolving this apparent

conflict, I find it most likely that Brock began drafting the citation and order as soon he reached

the mine based on the information in the complaint and his discussion with Rhea. After the

investigation was complete, Brock may have added additional findings before formally issuing

the order and citation to Cloverlick.

indicate not applicable, in the space allotted for the contractor’s name. P. Ex. 2, at 1; Tr. 52, 53.7

The sanitized complaint describes the alleged hazardous condition as “Highwall dangerous -

Rock & loose materials falling.” P. Ex. 2, at 1. While Rhea was working on the paperwork,

MSHA supervisor Lester Cox called inspector Silas Brock at home and asked him to come to the

Harlan field office to help respond to the safety complaint. Tr. 44-45, 61.

At 12:50 p.m., Rhea called Cloverlick’s maintenance foreman, Ralph Martin, to warn the

company about a credible allegation of a possible imminent danger. Tr. 46-49, 55; P. Ex. 6, at

1.8 Rhea did not issue an imminent danger order during the call, but he requested that Cloverlick

remove all miners in the affected area until an investigation could be completed. Tr. 46-49. 

After the call, Rhea briefed inspector Brock on the complaint. Brock reviewed the un-redacted

complaint and was given a copy of the sanitized complaint to present to the operator. Tr. 62. 

Brock’s contemporaneous notes indicate that he arrived at the Cloverlick mine at 2:05

p.m. Within minutes of arriving, Brock began drafting an imminent danger order and citation to

issue to Cloverlick. P. Ex. 6, at 1.9

 Brock drove down to the pit area, where he met Cloverlick

superintendent, Lake Standridge, and vice president of Cumberland, Craig Garland. Tr. 65-66. 

Standridge and Garland explained to Brock that Cumberland had excavated a hole at the

base of the hill to build a foundation for one of the legs that would support the new coal stacker

belt and a retaining wall for the hillside. Tr. 67, 82. Standridge told Brock that once Cloverlick

was contacted by Rhea, the miners were removed from the area around the hole and no further

work was done to the site. Tr. 70. Garland told Brock that “the next step would be to get into

36 FMSHRC Page 2149
10 I take administrative notice of the fact that brightly-colored spray paint is commonly

used in construction and mining sites as a way to mark surveying points, potential hazards, or

locations of future construction.

11 Garland testified that the dangerous conditions on the hill were noted during the preshift examination of the work site. Tr. 209. At the request of the undersigned, the parties were

asked to produce a copy of the pre-shift examination report to be marked as Joint Exhibit 3. Tr.

211. The report indicates that during an examination on February 17, 2012 at 7:00 a.m., unsafe

conditions were noted at the highwall near the stacker belt. Jt. Ex. 3. The report was signed by

the foreman, but the co-signature for the mine manager/mine foreman/superintendent was left

blank. Under action taken, foreman Johnny Gray wrote, “check for cracks.” Id. Under remarks,

Gray wrote, “unsafe highwall, built berm’s, (sic) cautioned off area, advised men of the

condition’s (sic).” Id. At hearing, however, it was undisputed that the area was not cautioned

off and berms were not built until after inspector Brock was on site. Tr. 90, 125, 137-38, see

also R. Letter Accompanying Submission of Jt. Ex. 3. As the report included facts that were not

(continued...)

the hole that they excavated, build forms, and put rebar in there so they can pour concrete.” Tr.

70-71. 

Brock testified that the hillside directly above the work site was very steep and contained

a significant amount of loose dirt and rocks, as well as concrete blocks and scrap metal. Tr. 65,

83, 86; see also P. Ex. 7-B. In addition, water was draining out of the side of the hill and had

accumulated at the bottom of the hole “a little over ankle deep.” Tr. 78. Brock testified that

when he saw “all that loose material, I believe[d] in my heart that there was an imminent danger

there and that if anyone was in that hole they would be in [the] line of a mud slide.” Id. 

During the investigation, Garland informed Brock that the hole had been excavated that

morning and that no miner had accessed the hole prior to the inspector’s arrival. Tr. 96, 107. 

Garland testified that on the morning of the inspection, miners were working near the hole tying

rebar in preparation for building the structure’s foundation. Tr. 181. After receiving the call

from Rhea, Garland testified that his foreman moved the miners and rebar to another location,

away from the dig site. Tr. 180-81. 

Inspector Brock, unable to rely upon facts gleaned from the anonymous complaint, was

only able to testify that no miners worked in or near the hole during his time at the mine. Tr. 95-

96. Brock, however, did notice orange paint along the side of the hole, but was unsure if miners

had entered the hole to make the marks. Id., see also R. Ex. 3-C. Contemporaneous photographs

taken during the inspection reveal three horizontal lines of distinctive orange marking paint

along the sides of the hole. R. Ex. 3-C.10 Garland testified that he did not know who made the

markings, nor what the paint was intended to signify. Tr. 207. 

According to Garland, Cumberland had identified the loose material on the bank as a

potential hazard prior to MSHA’s intervention, and the contractor was considering various

means of addressing the hazardous conditions. Tr. 179, 189, 202; see also Jt. Ex. 3.11 Garland

36 FMSHRC Page 2150
11(...continued)

available during the pre-shift examination, I find the reliability of the report suspect and that at

least certain portions of the report were created after the fact. 

indicated that Cumberland had tried to clean up the hillside with an excavator, but was

concerned that it was unsafe for miners to work in close proximity to the hillside. Tr. 202, 239. 

Brock confirmed that the bank showed markings, which indicated that an excavator had scraped

off loose material on at least two occasions. Tr. 128. According to Garland, Cumberland did not

intend to allow miners into the hole. Instead, Cumberland was considering two alternatives: (1)

using an excavator outside the hole to lift the form and rebar into place, or (2) redesigning the

coal stacker belt to move the support out further from the side of the hill. Tr. 202-03.

At hearing, Garland and Brock gave conflicting testimony as to whether it was possible

for Cumberland to place a wooden frame and pre-assembled rebar into the hole using the

excavator, without requiring miners to be in the hole. Based on his limited experience building

forms for concrete, Brock did not think it was possible for the excavator to place the forms,

constructed outside the hole, into place in the hole, without requiring miners to access the

alleged unsafe area at the base of the embankment. Tr. 77-79. Garland, however, maintained

that he had done so in the past, but admitted that a miner would have to be near the hole to adjust

the form when it is lifted into place by the excavator. Tr. 190-91. 

 Brock testified that Garland was resistant to the idea of moving the foundation away

from the hillside. In fact, Garland told Brock that because “times are tough in the coal industry,”

Cumberland would have to lay off the miners if Cumberland could not proceed with construction

that day. Tr. 94-95. Based on Cumberland’s eagerness to proceed with the construction project,

Brock determined that it was likely that miners would have to access the area at the base of the

bank and be exposed to a significant risk of injury from falling earthen material. Tr. 93-94. 

Accordingly, Brock issued a section 107(a) imminent danger order to Clovelick, but not

Cumberland. Order No. 8374442 specifically alleges:

The operator has excavated a hole approximately 4 to 5 feet deep by

10 feet wide by 20 feet long at the construction project at the coal

stockpile area. This hole is the site where workers are about to

construct concrete forms for a restraining wall. The adjacent hillside

at the hole is very steep and covered with wet loose earth, water is

observed coming out of the hillside and is accumulating in the hole.

This 107(a) Order is issued to stop the project and prohibit any

activity at this site due to the threat of falling rock and/or sliding

earth material. 

P. Ex. 3.

36 FMSHRC Page 2151
12 As noted above, a duplicate safe access citation that issued to Cumberland was settled. 

In conjunction with the imminent danger order, Brock also issued a section 104(a) safe

access citation to Cloverlick.12 Citation No. 8374443 specifically alleges a violation of 30

C.F.R. § 77.205(a), as follows: 

Safe access is not provided at the retaining wall construction work

site near the coal stockpile area. The operator has excavated a large

hole, to build concrete forms, beside a steep hill side, that is covered

with wet loose earth, water is observed coming out of the hillside and

is accumulating in the hole. This condition puts miners at risk of

being struck by falling rocks or loose earth materials. A 107(a)

imminent danger order #8374442, has also been issued concerning

this matter. No miners have yet been observed in the area cited. 

P. Ex. 4. The Citation originally alleged that the conditions on the hillside were highly likely to 

result in a lost workdays or restricted duty injury to four miners. The Citation designated the

violation as S&S, and attributed moderate negligence to Respondent Cloverlick. Id.

At 4:35 p.m., Citation No. 8374443 was terminated when a berm was erected around the

hole and the area was cautioned off with tape. Tr. 147-48, 194-95; see also P. Ex. 7-G. Brock,

however, did not terminate the imminent danger order because it was his understanding that

Cumberland was planning to resume construction of the foundation. Tr. 148. Further, Brock

admitted to Garland that he did not know how the operator could abate the imminent danger and

promised to return to the mine with a ground control specialist or engineer to provide further

instruction. Tr. 94. 

On February 21, 2012, Brock returned to the mine site with MSHA mining engineer,

Kevin Doan. Tr. 99. Upon re-examination of the site, Brock observed that a significant amount

of material had fallen from the hillside into the hole. Tr. 100. Based on the size and amount of

material in the hole, Brock amended Citation No. 8374443 to allege that the hazard would be

reasonably likely to result in permanently disabling injuries. Tr. 109. 

The imminent danger order was terminated after Doan discussed the problem with

Garland and Curtis Scott, general manager for Cloverlick. Tr. 117-18. As a result of those

discussions, Cloverlick agreed to fill the hole and re-engineer the project so that the foundation

could be constructed further away from the hillside. Id. 

36 FMSHRC Page 2152
IV. Disposition and Analysis

A. Order No. 8374442

1. Validity of Imminent Danger Order

An imminent danger exists whenever “the condition or practice observed could

reasonably be expected to cause death or serious physical harm to a miner if normal mining

operations were permitted to proceed in the area before the dangerous condition is eliminated.” 

30 U.S.C. § 802(j); see also Wyoming Fuel Co., 14 FMSHRC 1282, 1290 (Aug. 1992);

Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting E. Associated

Coal Corp. v. Interior Bd. of Mine Operations Appeals, 491 F.2d 277, 278 (4th Cir. 1974)

(emphasis omitted)). For an imminent danger order to issue under section 107(a), there must be

some degree of imminence such that the hazardous condition has a reasonable potential to cause

death or serious injury within a short period of time. Id. The Secretary bears the burden of

proving the reasonableness of the imminent danger order by a “preponderance of the evidence.” 

Island Creek Coal Co., 15 FMSHRC 339, 346 (Mar. 1993). 

The concept of imminent danger is not limited to hazards that pose an immediate danger. 

Rochester & Pittsburgh Coal Co., 11 FMSHRC at 2163 (citing Freeman Coal Mining Co. v.

Interior Bd. of Mine Operations Appeals, 504 F.2d 741 (7th Cir. 1974)); see also Blue Bayou

Sand & Gravel, Inc., 18 FMSHRC 853, 858 (June 1996); VP-5 Mining Co., 15 FMSHRC 1531,

1535 (Aug. 1993); Island Creek Coal Co., 15 FMSHRC 339, 345 (Mar. 1993). Although the

Commission has cautioned against narrowly construing imminent danger to include only

immediate threats, there must be some degree of imminence to support an imminent danger

order. That is, a hazard must be impending so as to require the withdrawal of miners. Island

Creek Coal Co., 15 FMSHRC at 345. 

The undersigned “must support the findings and the decisions of the inspector unless

there is evidence that he has abused his discretion or authority.” Wyoming Fuel, 14 FMSHRC at

1291 (quoting Old Ben Coal Corp. v. Interior Bd. of Mine Operations Appeals, 523 F.2d 25, 31

(7th Cir. 1975)). An inspector abuses his discretion “if he issues a section 107(a) order without

determining that the condition or practice presents an impending hazard requiring the immediate

withdrawal of miners.” Island Creek, 15 FMSHRC at 345. An abuse of discretion also

“includes errors of law.” See, e.g., Utah Power, 13 FMSHRC 1617, 1623, n. 6 (Oct. 1991). 

Both parties agree that the earthen material on the steep bank of the hill posed a danger to

anyone working in the excavated area at the time the Order was issued. Cloverlick, however,

claims that an imminent danger did not exist because miners were never exposed to the danger. 

R. Br. at 11. Cloverlick relies on the fact that Brock did not see anyone working in the hole

during his inspection, and he was unable to testify definitively that miners had accessed the hole

prior to the inspection. Cloverlick further argues that any future action by Cumberland that

might place a miner in the excavation is mere speculation on the part of the inspector because

Cumberland was aware of the problem, but had not yet decided how to proceed. Id.; see also Tr.

160, 164, 168, 170. Thus, Cloverlick contends that the Secretary has failed to meet his burden to

show that the danger was imminent. 

36 FMSHRC Page 2153
13 Cumberland’s voluntary withdraw of miners from the excavation site does not

preclude the issuance of an imminent danger order. The immediacy of the danger is determined

by assuming continued normal mining operations, not operations that have been altered after

MSHA alerts a mine of the danger. E. Assoc. Coal Corp. v. Interior Bd. of Mine Operations

Appeals, 491 F.2d 277 (4th Cir. 1974). 

Upon examination of the record, I find Cloverlick’s arguments unconvincing. I do not

credit Garland’s self-serving testimony that Cumberland had not made a decision about how to

proceed with the construction project. After the danger posed by the embankment was brought

to the attention of management, Cumberland did not halt construction while it weighed its

options. Rather, Cumberland proceeded to prepare the site for construction. By the time the

imminent danger order was issued, Cumberland had all of the materials needed for building the

foundation at the site and had begun to prepare the area for construction. That morning,

Cumberland, armed with the knowledge of the danger the embankment posed, excavated the

hole and instructed miners to begin building forms and tying rebar. Tr. 160. Once these tasks

were completed, construction of the foundation could begin immediately. See Tr. 170. 

While it is possible that Cumberland could have aborted the project at the last minute,

such a scenario is unlikely given steps that Cumberland had taken up to this point. Furthermore,

Brock convincingly testified that Garland was intent on completing the project expeditiously and

was resistant to the idea of re-engineering the project to move the foundation away from the

embankment. Tr. 94-95. According to Brock, Garland said that there would be adverse financial

implications for the company if Cumberland was unable to continue construction, and

Cumberland would have to lay off the miners involved in the construction project. Id. 

Having found that construction was imminent, I turn to Cloverlick’s argument that the

foundation could be constructed in such a way that miners would not have to work in the

hazardous area. It is clear that at least one miner had already accessed the recently excavated

hole on the morning of the inspection. Despite Garland’s testimony to the contrary, the

Secretary has produced the proverbial “smoking gun” in the form of testimony and photographic

evidence clearly showing that the walls of the excavated area had been marked with spray paint. 

Tr. 96; P. Ex. 7a. Cloverlick has not offered any evidence that would refute the reasonable

inference that any miner that applied these markings would have to be in very close proximity to

the base of the dangerous embankment on the morning of the inspection, when the hole was

excavated. 

Accordingly, I find that Cumberland had already allowed miners to work in the hole

despite its knowledge of the danger. Given this finding, it is reasonable to infer that Cumberland

would have continued to do so, absent the anonymous complaint and quick intervention by

MSHA.13 Even assuming arguendo, that placing the forms and rebar with the excavator was

possible, I find that miners would, at some point, have to access the hole during the course of

continued mining operations. At hearing, Garland conceded that a miner would typically need to

be positioned nearby to adjust the form as it is lifted into place. Tr. 190-91. Further, it strains

credulity to assume that miners would not need to enter the hole to secure the form to the ground

before pouring the concrete for the foundation. 

36 FMSHRC Page 2154
Accordingly, I find that the Secretary has shown by a preponderance of the evidence, that

inspector Brock’s determination that the embankment posed an imminent danger to miners

working in the excavated hole was reasonable. The credible evidence proffered at hearing

strongly refutes Garland’s assertions that miners had not accessed the hole earlier in the morning

and would not be required to do so under continued normal mining operations. Despite knowing

the danger that the embankment posed, Cumberland continued to prepare the site for

construction. Given the adverse financial implications for Cumberland were it to halt

construction, and given the effort that Cumberland had already expended to commence

construction, it is reasonable to expect that construction would have continued, absent MSHA’s

intervention, and miners inevitably would have been placed in harm’s way.

2. Abuse of Discretion

Cloverlick argues that the Secretary abused his discretion by issuing the imminent danger

order to Cloverlick, and not Cumberland. R. Br. 21. Cloverlick maintains that since it retained

Cumberland to construct the stacker belt and since the contract required that Cumberland and its

employees comply with all relevant MSHA standards, Cloverlick should not be liable for the

hazardous conditions solely within the control of Cumberland. Id. Cloverlick argues that,

although the hazardous condition was located at its mine, it did not contribute to the alleged

violative conditions in any way. Id. at 23. 

Cloverlick further argues that by citing the production operator, MSHA has departed

from its own norms without explanation. R. Br. 22, 23. Respondent adduced evidence that

MSHA has not typically issued dual enforcement actions to Cloverlick and its contractor. R. Ex.

8, 9; Tr. 159. Moreover, Cloverlick points to the fact that the Secretary has promulgated official

agency guidelines that set forth when an order can be issued to a production operator in addition

to the contractor. See Independent Contractors: Final Rule, 45 Fed. Reg. 44495 (1980). 

Cloverlick argues that the order should be vacated because the inspector did not comport with

these guidelines when issuing the imminent danger order to the production operator. 

Section 107(a) of the Mine Act states in pertinent part that “[i]f . . . an authorized

representative of the Secretary finds that an imminent danger exists, such representative shall . . .

issue an order requiring the operator of such mine to cause all persons . . . to be withdrawn

from, and to be prohibited from entering, such area until an authorized representative of the

Secretary determines that such imminent danger and the conditions or practices which caused

such imminent danger no longer exist.” (emphasis added). 

 All of the courts that have had occasion to address the question have held that the

Secretary may define an “operator” to include the production operator, the contractor, or both. 

Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 155 (D.C. Cir. 2006); Int’l Union, United

Mine Workers of Am. v. FMSHRC, 840 F.2d 77, 83 (D.C. Cir. 1988); Cyprus Indus. Minerals

Co. v. FMSHRC, 664 F.2d 1116, 1119 (9th Cir. 1981); Harman Mining Corp. v. FMSHRC, 671

F.2d 794, 797 n. 2 (4th Cir.1981); Bituminous Coal Operators’ Ass’n v. Sec’y of Interior, 547

F.2d 240, 246 (4th Cir. 1977) (addressing the issue under the Mine Act’s precursor, the Federal

Coal Mine Health and Safety Act of 1969). That Cloverlick could contract away its duties under

the Mine Act is anathema to the Act’s enforcement scheme. As the Commission has ruled, “it

36 FMSHRC Page 2155
14 In the past, the Secretary has proposed that imminent danger orders be reviewed under

an arbitrary or capricious standard to determine if the order was issued to the proper operator. 

Cyprus Indus. Minerals, Corp., 1 FMSHRC 2069, 2087 (Jan. 1980) (ALJ). 

15 The Supreme Court has also recognized the unique role of the Commission as the

arbiter of questions of interpretation of the Mine Act. Compare Thunder Basin Coal Co. v.

Reich, 510 U.S. 200, 214 (1994) (affirming the Commission’s role in formulating a uniform and

comprehensive interpretation of the Mine Act) with Martin v. Occupational Safety & Health

Review Comm'n, 499 U.S. 144, 157-58 (1991) (emphasizing the narrowness of the holding that

OSHRC is authorized to review the Secretary's interpretations only for consistency with the

regulatory language and for reasonableness); see also Speed Mining, Inc., 28 FMSHRC 773

(continued...)

bears emphasis that the miners of an independent contractor are invited upon the property of the

mine owner to perform work promoting the interests of the owner. A mine owner cannot be

allowed to exonerate itself from its statutory responsibility for the safety and health of miners

merely by establishing a private contractual relationship in which miners are not its employees

and the ability to control the safety of its workplace is restricted.” Republic Steel Corp., 1

FMSHRC 5, 11 (Apr. 1979). 

Accordingly, it is clear that the Secretary retains some discretion in determining which

operator to cite for any given citation or order and that the contractual relationship with an

independent contractor does not limit the production operator’s liability for violations of health

and safety standards occurring at its mine. The only issue remaining is whether there are any

bounds to the Secretary’s discretion in deciding to issue an imminent danger order to a particular

operator, which warrant Commission review. 

Historically, the Commission has held that the Mine Act grants it an independent

adjudicatory role in reviewing the Secretary’s enforcement actions for abuse of discretion.14 See

Bulk Transp. Servs., Inc., 13 FMSHRC at 1360-61 (reviewing the Secretary’s choice to issue a

citation to both the operator and contractor under an abuse of discretion standard); Consolidation

Coal Co., 11 FMSHRC 1439, 1443 (Aug. 1989) (same); see also Cyprus Indus. Minerals Co. v.

FMSHRC, 664 F.2d 1116, 1120 (9th Cir. 1981) (applying abuse of discretion test to Secretary’s

decision to issue an imminent danger order to a production operator). The position of the

Commission was informed by the language of the Mine Act, which gives it jurisdiction over

“substantial question[s] of law, policy or discretion,” 30 U.S.C. § 823(d)(2)(A)(ii)(IV), and the

Mine Act’s legislative history, which makes clear that “[t]he Commission was established as the

‘ultimate administrate review body’ under the Act due to the recognition that ‘an independent

Commission is essential to provide administrative adjudication which preserves due process and

instills much more confidence in the program.’” Old Ben Coal Co., 1 FMSHRC 1480, 1484

(Oct. 29, 1979) (finding that the Secretary’s decision to proceed against a production operator for

a contractor’s violation is reviewable by the Commission), citing S. Rep. No. 95-181, at 13

(1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th

Cong., Legislative History of the Federal Mine Safety and Health Act of 1977, at 601, 635 (1978)

(“Legis. Hist.”).15 

36 FMSHRC Page 2156
15(...continued)

(Sept. 2006) (Chairman Duffy, concurring and providing a detailed examination of the

differences in the OSH Act and the Mine Act). 

16 There are some important differences that arise in the context of imminent danger

orders that are not present in the circuit courts’ decisions dealing with civil penalty citations. 

Unlike civil penalty citations, the purpose of an imminent danger order is to promptly counteract

dangerous conditions that present a threat to the safety of miners, not to punish or assign liability

to an operator. See S. Rep. No. 95-181, at 38, Legis. Hist. at 626. This specific purpose makes

the discretion exercised by the Secretary less like the type exercised in a prosecutor’s charging

decision, and more akin to an exercise of police power to protect the general welfare, over which

the courts traditionally have review. See Plymouth Coal Co. v. Com. of Pennsylvania, 232 U.S.

531, 545 (1914) (seizing mine property to further a safety interest is an exercise of police powers

and the arbitrary exercise of such powers is subject to judicial review). An imminent danger

order grants the inspector the awesome power to essentially seize an operator’s property and

issue a withdrawal order to protect the health and safety of miners. Such decisions are made

quickly, often without review of the inspector’s superiors or agency counsel. See Island Creek

Coal Co., 15 FMSHRC at 346.

More recently, the D.C. Circuit Court of Appeals and the Fourth Circuit Court of Appeals

have departed from this traditional view of the scope of the Commission’s authority. These

courts have ruled that the discretion of the Secretary to issue a civil penalty to the production

operator and/or the independent contractor is unreviewable. Sec’y of Labor v. Twentymile Coal

Co., 456 F.3d 151 (D.C. Cir. 2006); Speed Mining, Inc. v. FMSHRC, 528 F.3d 310 (4th Cir.

2008). The Twentymile and Speed Mining cases both find that the Commission lacks any policymaking role and thus may not create standards to review the Secretary’s enforcement actions in

furtherance of the Mine Act’s purpose and safety objectives. Without a Commission-made

standard or a standard expressly set forth in the Mine Act, no judicially manageable standards

exist for determining which operator to cite. Therefore, the courts reason that, despite the

general presumption of reviewability of agency actions, the Secretary’s decision to cite a

production operator is unreviewable. Speed Mining, 528 F.3d at 317-17; Twentymile, 456 F.3d

at 157. 

Although Twentymile and Speed Mining address the Secretary’s authority to issue civil

penalty citations to multiple operators, their underlying rationale appears to proscribe

Commission review of other enforcement actions, such as in the context of imminent danger

orders.16 Aside from the Secretary’s enforcement guidelines, the record does not provide any

evidence of a standard by which the Commission may review the properness of the Secretary’s

decision to issue the imminent danger order to Cloverlick. The Commission and courts,

however, have universally held that the enforcement guidelines are merely a general statement of

policy that do not curtail the Secretary’s discretion. See, e.g., Brock v. Cathedral Bluffs Shale

Oil Co., 796 F.2d 533, 538 (D.C. Cir. 1986) (Scalia, J.). 

36 FMSHRC Page 2157
17 In the present case, there exists some evidence that the initial decision to issue the

citation and order to Cloverlick could be construed as arbitrary and capricious, and not the

product of reasoned decision making on the part of the Secretary. The sanitized complaint

(continued...)

Similarly, I find that the enforcement guidelines lack the certainty to bind the Secretary’s

discretion in choosing which party to issue a citation or order. Although the guidelines were

published in the Federal Register and later incorporated into the Secretary’s Program Policy

Manual (“PPM”), the language of both iterations does not seem to constrain the discretion of the

Secretary in any way. The four enumerated instances when the Secretary may issue a citation or

order to a production operator are merely illustrative examples to put the industry on notice of

when it is “normally appropriate” to deviate from the standard procedure of issuing a citation to

the party responsible for the hazardous condition or practice. Furthermore, the PPM makes clear

that “MSHA’s enforcement policy regarding independent contractors does not change

production-operators’ basic compliance responsibilities” to “assur[e] compliance by independent

contractors with the Act and with applicable standards and regulations.” U.S. Dep’t of Labor,

MSHA, Program Policy Manual, Vol. III, Part 45, at 10, (2003), available at

www.msha.gov/REGS/COMPLIAN/PPM/PMMAINTC.HTM (last accessed July 17, 2014). 

Although the guidelines do not have binding effect, the Secretary is still obligated to

provide a reasoned explanation for a departure from established agency policy. Telecomms.

Research & Action Ctr. v. FCC, 800 F.2d 1181, 1184 (D.C. Cir.1986) (“When an agency

undertakes to change or depart from existing policies, it must set forth and articulate a reasoned

explanation for its departure from prior norms.”). Not all agency pronouncements and advice,

however, rise to the level of agency policy or norms. For the enforcement guidelines to be

considered official policy, the record must demonstrate a pattern of reliance on the guidelines to

support agency decisions to cite a particular operator. See Vietnam Veterans of Am. v. Sec’y of

the Navy, 843 F.2d 528, 539 (D.C. Cir. 1988). 

There is insufficient evidence in the record to determine the extent of the Secretary’s

reliance on the enforcement guidelines. Although Respondent offered evidence that MSHA had

not cited it for contractor violations in the past, inspector Brock testified that he had not

reviewed the guidelines on the day of the initial inspection and did not appear to strictly follow

the guidelines as a matter of general practice. Tr. 143, 146 (Brock testified that he normally

issued dual enforcement actions when there are a significant number of contractor violations at a

mine, which is not a consideration in the enforcement guidelines). Further, there is nothing in

the record that indicates that MSHA expected that its inspectors would strictly adhere to the

guidelines or that inspectors normally refer to the guidelines in determining which operator to

cite. 

Accordingly, under extant Commission and U.S. Circuit Court precedent I am

constrained to find that the authority of the Secretary to issue an imminent danger order to a

particular party is unreviewable. The undersigned sympathizes with Respondent’s concern that

the reversal of the Commission’s authority to fully review the Secretary’s enforcement discretion

may lead to arbitrary enforcement.17 The clear intent of Congress, as thoughtfully set forth by

36 FMSHRC Page 2158
17(...continued)

indicates that Brock went into the inspection with the belief that a subcontractor was not

involved. P. Ex. 2, at 1. Inconsistencies in Brock’s time line of events make it appear that he

decided to cite Cloverlick for the violative condition before the inspection was complete. See

supra note 9. At hearing, Brock was evasive when asked why he decided to issue the citation

and order to Cloverlick, and not to Cumberland. Tr. 141-43. Furthermore, I am unconvinced by

the Secretary’s argument that the citation and order were issued to Cloverlick because Gilliam’s

notes showed that Cloverlick had actual knowledge of the condition prior to MSHA’s

intervention. See P. Br. 22. I credit Gilliam’s testimony that he made his notes about the

incident after the imminent danger order was issued, and that the notes represent a third-hand

account of discussions between Cumberland employees. See Tr. 240-44. 

18 In Imerys Pigments, LLC, the Commission applied the D.C.’s Circuit Court of

Appeals’s finding in Twentymile even though the operator could have appealed the case to the

11th Circuit Court of Appeals pursuant to section 106(a)(1) of the Act. See Imerys Pigments,

LLC, 28 FMSHRC 788 (Sept. 2006). As I noted in Pattison Sand Company, LLC, 34 FMSHRC

2938, 2943, n. 3 (Nov. 2012) (ALJ), the Commission has not addressed the issue of nonacquiescence to circuit court decisions despite the fact that there is considerable authority that an

administrative agency charged with the duty of formulating uniform and orderly national policy

in adjudications is not bound to acquiesce in the views of the U.S. Courts of Appeals that

conflict with those of the agency. See, e.g., S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d

1273, 1278-1279 (5th Cir. 1981); see generally Samuel Estreicher, Nonacquiescence by Federal

Administrative Agencies, 98 Yale L.J. 679, 681 (1989). 

former Chairman Duffy in the wake of the Twentymile decision, was for the Commission to

ensure the consistent application of mine safety and health law and policy. See Speed Mining,

Inc., 28 FMSHRC 773, 775-86 (Sept. 2006) (Duffy, concurring). This interpretation of the

Commission’s role, however, has thus far failed to gain traction against the indiscriminate

application of Martin v. OSHRC to Commission cases. Thus, I defer to the Commission’s rather

reluctant adoption of the principles set forth in the Twentymile and Speed Mining decisions. See

Imerys Pigments, LLC, 28 FMSHRC 788 (Sept. 2006).18 Having found neither a judicially

manageable standard by which to measure the appropriateness of the Secretary’s actions nor an

obligation for the Secretary to explain a departure from apparent agency policy, this

administrative tribunal lacks a basis for curtailing the Secretary’s enforcement discretion. 

Accordingly, Order No. 8374442 is affirmed.

B. Citation No. 8374443

Citation No. 8374443 alleges a violation of 30 C.F.R. § 77.205(a), which states in

pertinent part that a “[s]afe means of access shall be provided and maintained to all working

places.” While MSHA has not established an official policy for this standard, it has published

guidance on its website about issues that operators should consider when determining

compliance. U.S. Dep’t of Labor, MSHA, Top 20 Violations: Tips, available at www.msha.gov/

STATS/Top20Viols/tips/11001.htm#.Uz7_KFdhoTk (last accessed July 17, 2014). These issues

include: 

36 FMSHRC Page 2159
19 The Secretary has not offered anything in the way of legal precedent or agency

interpretation that supports reading the safe access standard so broadly. On post-hearing brief,

the Secretary simply states, without further elaboration or support, that “[t]he Secretary submits

that [§ 77.205(a)] has unquestionably been violated.” P. Br. 20. 

Is permanent or temporary access provided to all working places?

Are miners climbing the equipment or machinery to access work

places? Are fall-of-person hazards created by a lack of a stairway,

ladder, ramp, etc.? Are handholds provided, if necessary? Are

crossovers or crossunders provided where needed?

Id. 

By all accounts, inspector Brock was unsure how to classify the hazard when drafting the

citation. Garland recalled that when he asked Brock how the hazard could be remedied, Brock

replied, “I don’t know enough about this to even make a citation.” Tr. 193. Similarly, Brock

testified that before issuing the citation under § 77.205(a), he spoke with the MSHA assistant

district manager by telephone and said, “I really don’t know what we could put on that [citation]. 

This is really not a high wall as far as rock or a high wall on a surface. If anything, it’s a matter

of safe access.” Tr. 141-42. When asked at hearing how he reached this conclusion, Brock

replied:

Safe access is a broad reaching standard, but it just means that if a

miner has to work in an area, then that area has to be made safe for

him to work there. And safe access was not provided at this retaining

wall construction project due to the threat of land slides and mud

slides from that steep embankment . . . . Because there’s nothing

there to protect them from that wall of mud that’s ready to slide off.

And if that’s the work site, then that’s definitely not safe access to the

work site. 

Tr. 106.

Section 77.205(a), however, is not nearly as broad as the inspector suggests.19 It is an

oft-repeated legal maxim that “[w]hen the meaning of the language of a statute or regulation is

plain, the statute or regulation must be interpreted according to its terms, the ordinary meaning

of its words prevails.” W. Fuels-Utah, Inc., 11 FMSHRC 278, 283 (Mar. 1989). If the

regulation is plain on its face, effect should be given to its clear meaning. Exportal Ltda. v.

United States, 902 F.2d 45, 50 (D.C. Cir. 1990).

The clear meaning of § 77.205(a) only requires that the means of access to a workplace – 

be it a ladder, walkway, elevated platform, or other designated route – be free from safety

hazards. The standard does not impose, as the inspector suggests, a “general duty” on operators

to maintain safe workplaces. Such a duty would run afoul of the intent of Congress, who

36 FMSHRC Page 2160
20 When the Conference Committee was reconciling the differences between the House

and Senate versions of the Mine Act, the committee explicitly removed a general duty clause that

was contained in the original Senate version of the Act. The Senate Conference Report

explained:

The Senate bill contained a “general duty” clause which required

operators to furnish safe and healthful working conditions free from

recognized hazards likely to cause death or harm to miners and to

comply with rules, regulations and orders promulgated under the Act.

This provision would have permitted the issuance of citations or the

assessment of civil penalties based on violations of the general duty.

The House amendment had no general duty clause.

S. Conf. Rep. No. 461, 95th Cong., 1st Sess. 38–39, Legis. Hist. at 1316-17.

21 The mound of earth directly adjacent to the excavation site was referred to as a “bank”

or “embankment” throughout the hearing. See, e.g., Tr. 30, 106, 163, 179, 180, 183, 185, 186,

204, 205. In the citation, order, and inspector’s notes, it is referred to as a “hillside.” P. Exs. 4-

6. For purposes of this decision, banks and hillsides are synonymous. See Dictionary of Mining,

Mineral, and Related Terms 77 (1968) (defining bank as “a hill or brow”); Merriam-Webster's

Online Dictionary, http://www.merriam-webster.com/dictionary/bank (last accessed July 18,

2014) (defining bank as “a steep slope (as of a hill)” or “a mound, pile, or ridge raised above the

surrounding level”).

purposely did not include in the Mine Act the type of general duty clause present in the

Occupational Safety and Health Act.20 

Further, inspector Brock is mistaken in his assertion that ground control standards would

not adequately address the hazardous condition at issue. While the hazard did not involve a

“highwall” as was originally described in the 103(g) complaint, MSHA ground control standards

for surface areas of underground coal mines specifically apply to embankments.21 For example, 

§ 77.1004 requires inspection of banks and terrain that slopes into a working area, and requires

miners to be withdrawn pursuant to § 77.1713 if hazardous conditions are present. Similarly, 

§ 77.1006 proscribes miners from “work[ing] near or under dangerous highwalls or banks.”

As the Secretary has not opted to plead these other standards in the alternative, this case

must rest on whether the Secretary can support the assertion that a danger to safety existed to

miners accessing the work site. The Secretary acknowledges in his brief, “[t]he conditions

described by Mr. Brock in his direct testimony, the photographs, and the written notes and

testimony of Mr. Gilliam clearly establish that it was unsafe and extremely hazardous for miners

to work installing rebar in this hole that had been dug at the base of the high wall created by this

excavation.” P. Br. 20-21 (emphasis added). Similarly, Brock testified that “[t]he imminent

danger only existed if you were in the hole.” Tr. 148; see also Tr. 151. While a hazard existed

once a miner was in the hole, there was no evidence adduced at hearing to suggest that access to

the workplace was itself dangerous. Accordingly, the citation is vacated. 

36 FMSHRC Page 2161
22 Payment should be sent to: Mine Safety & Health Administration, U.S. Department of

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.

V. Order

I find that inspector Brock reasonably determined that the conditions at Cloverlick No. 1

mine presented an imminent danger to miners. The Secretary, however, failed to prove by a

preponderance of the evidence that Respondent Cloverlick violated 30 C.F.R. § 77.205(a) by

failing to provide and maintain a safe means of access to all working places. Accordingly it is

ORDERED that Order No. 8374442 be affirmed and that Citation No. 8374443 be VACATED.

It is further ORDERED that the operator pay a penalty of $2,500.00 for settled Citation

No. 8399036 within thirty days of this order, if it has not already done so.22 

/s/ Thomas P. McCarthy

Thomas P. McCarthy

Administrative Law Judge

Distribution:

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street,

Suite 230, Nashville, TN 37219-2456

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Avenue, Suite

1500, Pittsburgh, PA 15222

/tjr

36 FMSHRC Page 2162
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

August 5, 2014 

DECISION ON REMAND

Appearances: Robin Rosenbluth, Esq., Office of the Solicitor, U.S. Department of Labor, 

Arlington, VA, for the Petitioner 

W. Christian Schumann, Esq. Office of the Solicitor, U.S. Department of Labor, 

Arlington, VA, for the Petitioner 

Melanie Garris, MSHA, U.S. Department of Labor, Arlington, VA 

Terry Schildt, S&S Dredging, 405 Pope Trail, Covington, GA, 30014, for the 

Respondent 

Before: Judge L. Zane Gill 

This case is before me upon remand by the Commission to determine an appropriate civil 

penalty for Citation No. 7794620. This case was originally decided by Administrative Law 

Judge Avram Weisberger who retired prior to the issuance of the Commission’s remand. 

Citation No. 7794620 charges a violation of 30 C.F.R. § 56.14100(b), which provides 

that: "Defects on any equipment, machinery and tools that affect safety shall be corrected in a 

timely fashion to prevent the creation of a hazard to persons." The citation was issued by the 

Secretary of Labor (“Secretary”) under 104(d)(1) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 814(d)(1). 33 FMSHRC 1324 (May 2011) (ALJ). The Respondent contested 

the Secretary’s allegation that the violation was significant and substantial (“S&S”) and was the 

result of its unwarrantable failure to comply with a mandatory safety standard. Id. at 1325-1327. 

After a hearing, Judge Weisberger vacated both the S&S and unwarrantable failure designations. 

Id. at 1327. 

The Secretary filed a petition for discretionary review, which was granted by the 

Commission. 35 FMSHRC 1979, 1980 (July 2013). The Secretary contended that the judge erred 

in overturning the S&S determination, and the Commission agreed. Id. The Secretary did not, 

however, petition for review of the judge’s decision regarding the operator’s unwarrantable 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

S&S DREDGING COMPANY, 

 Respondent 

CIVIL PENALTY PROCEEDING

Docket No. SE 2007-0447-M 

A.C. No. 09-00023-125618 E027 

Mine: Lithona Mine Site 

36 FMSHRC Page 2163

:

:

:

:

:

:

:

:

:
failure. Id. at n2. The Commission found that “[t]he judge erred by limiting S&S violations to 

those that are reasonably likely to result in injuries that require hospitalization, surgery, or 

require a long period of recuperation.” Id. at 1981. The Commission reversed the decision 

regarding whether Citation No. 7794620 should be designated as S&S, and affirmed the S&S 

designation. Id. at 1983. The proceeding was remanded to this court so that the appropriate 

penalty could be assessed. Id. 

 According to Section 110(a)(3)(A), the minimum penalty for any citation or order issued 

under Section 104(d)(1) shall be $2,000. 30 U.S.C § 820(a)(3)(A). However, under Section 

104(d)(1), the Secretary has the burden of proving that there was a violation of a mandatory 

health or safety standard, that such violation was of such nature as could significantly and 

substantially contribute to the cause and effect of a mine safety or health hazard, and that such 

violation was caused by an unwarrantable failure of such operator to comply with such 

mandatory health or safety standard. 30 U.S.C. § 814(d)(1). In this case, the judge found that a 

health and safety standard, namely Section 56.14100(b), was violated. 33 FMSHRC at 1325. 

Additionally, the Commission affirmed that Citation No. 7794620 should be designated as 

significant and substantial. 35 FMSHRC at 1983. The judge also determined that the 

unwarrantable failure standard was not met, and this determination was not included in the 

petitioned for review. Id. at n2. Therefore, because the Secretary did not meet his burden to 

prove the existence of an unwarrantable failure, the Section 104(d)(1) order must be amended to 

a citation under Section 104(a). See VA Crews Coal Co., 15 FMSHRC 2103, 2105-2106 

(October 1993). Thus, there is no statutory $2,000 minimum in this case. 

The assessment of the penalty then turns to Section 110(i) of the Mine Act. Under 

Section 110(i) the Commission is to consider the following when assessing a civil penalty: (1) 

the operator’s history of previous violations; (2) the appropriateness of such penalty to the size of 

the business of the operator charged; (3) whether the operator was negligent; (4) the effect on the 

operator's ability to continue in business; (5) the gravity of the violation; and (6) the 

demonstrated good faith in abatement of the violative condition. 30 U.S.C § 820(i). The 

Commission has held that “findings of fact on the statutory penalty criteria must be made” by its 

judges. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 

1984). Once findings on the statutory criteria have been made, a judge’s penalty assessment for 

a particular violation is an exercise of discretion, which is bounded by proper consideration for 

the statutory criteria. Id. at 294; Cantera Green, 22 FMSHRC 616, 620 (May 2000). 

 

In exercising this discretion, the Commission has continuously found that a judge is not 

bound by the penalty recommended by the Secretary. Spartan Mining Co., 30 FMSHRC 699, 

723 (Aug. 2008). In addition, the de novo assessment of civil penalties does not require “that 

equal weight must be assigned to each of the penalty assessment criteria.” Thunder Basin Coal 

Co., 19 FMSHRC 1495, 1503 (Sept. 1997). However, when a penalty determination 

“substantially diverge[s] from those originally proposed, it behooves the . . . judge to provide a 

sufficient explanation of the bases underlying the penalties assessed.” Spartan Mining, 30 

FMSHRC at 699. Otherwise, without an explanation for such a divergence, the “credibility of 

the administrative scheme providing for the increase or lowering of penalties after contest may 

be jeopardized by an appearance of arbitrariness.” Sellersburg Stone Co., 5 FMSHRC 287, 293 

(March 1983). As Senior Judge Zielinski recently expounded in American Coal Co., 35 

36 FMSHRC Page 2164
FMSHRC ___, slip op at 54-55, No. LAKE 2008-666 (May 19, 2014), the purpose of explaining 

significant deviations from proposed penalties is to avoid the appearance of arbitrariness. See 

Sellersburg, 5 FMSHRC at 293. 

The Secretary’s regulations for the determination of a penalty amount by a regular 

assessment take into consideration all of the statutory factors that the Commission is obligated to 

consider under section 110(i) of the Act.1

 30 C.F.R. § 100.3. The product of that regular 

assessment formula provides a useful reference point, which promotes consistency in the 

imposition of penalties by Commission judges. See Magruder Limestone Co., 35 FMSHRC 

1385, 1411 (May 2013) (ALJ). 

The stipulations agreed to by the parties and filed at the hearing were numerous and 

many speak to the 110(i) factors that are used to assess a penalty. It was stipulated that 

Respondent had six violations of a mandatory health and safety standard in the 15 months 

preceding the citation at issue, and that Respondent had one repeat violation of the mandatory 

safety standard cited in the citation at issue in the 15 months preceding the issuance of the 

citation. At the trial, Robert Knight, the site inspector who issued the citation at issue stated that 

S&S Dredging had received citations in the last two years, which showed other issues with 

mobile equipment that were not taken care of in a timely manner. (Tr. 42:14-19). 

As to the size of the business, there was uncontradicted testimony that only two persons 

worked at the mine. 33 FMSHRC at 1327. 

The judge determined that the operator was negligent to a high degree. Id. The parties 

stipulated that: 1) the L160 Michigan loader (“Loader”) at issue had been used extensively with a 

broken bottom step and a bent and partially caved in second step, sometimes on a daily basis; 2) 

the Loader at issue had been used in the violative condition for approximately two years prior to 

the citation at issue; 3) the Loader operators mounted and dismounted the Loader several times 

during a work day; 4) the second step on the Loader from the ground, which was the first usable 

step due to the condition of the broken bottom step, was three feet from the ground; 5) the 

second step on the Loader from the ground was bent, and partially caved in; 6) the operator’s 

owner, Patty Schildt, was aware of the damaged condition of the Loader steps for approximately 

two years prior to the issuance of the citation; 7) the violative condition was obvious; and 8) Ms. 

Schildt and another employee of Respondent regularly operated the Loader and climbed the steps 

of the Loader while in the violative condition. Additionally, Robert Knight testified that the 

 1 Under the regulations, penalty points are assigned based on the size of the operator and the 

operator’s controlling entity; the operator’s history of previous violations; the operator’s history of repeat 

violations of the same standard; the degree of the operator’s negligence; and, the gravity of the violation, 

including the likelihood of an occurrence of an event against which a standard is directed, the severity of 

injury or illness if the event were to occur, and the number of persons potentially affected if the event 

were to occur. A penalty amount is determined by applying the total of the points assigned to a “Penalty 

Conversion Table,” which specifies penalties ranging from $112 for 60 or fewer points, up to the 

statutory/regulatory maximum of $70,000 for 144 or more points. That figure may then be adjusted by 

reducing it by 10% if the operator demonstrated good faith in abating the violation. 30 C.F.R. § 100.3(f). 

A further reduction may occur if the operator can demonstrate to MSHA’s District Manager that the 

penalty will adversely affect its ability to continue in business. 30 C.F.R. § 100.3(h). 

36 FMSHRC Page 2165
negligence is high because management was aware of the condition and allowed it to exist for 

two years. (Tr. 39:18-22).

The parties stipulated that the Respondent was out of business at the time of the hearing. 

As to the gravity of the violation, the Commission found that there was an S&S violation 

due to the factors stipulated above and the trial testimony. Robert Knight testified that a potential 

injury from the broken Loader step could cause a lost workday or lost time injury (Tr. 29:13-14); 

there are no other means to access the cab besides the broken steps (Tr. 35-36: 24-2); and the 

likelihood of injury was reasonably likely to occur since the Loader was used in that condition 

for the last two years (Tr. 39:15-18). Additionally, Ms. Schildt testified that she possibly 

suspected that the condition of the Loader steps violated MSHA standards (Tr. 61:5-8); she did 

not do anything to find out whether the condition of the loader steps was a violation of MSHA 

standards (Tr. 61:9-12); and she did not correct the condition of the loader step (Tr. 61:13-15). 

Finally, the parties stipulated that Respondent made no effort to abate the condition cited 

prior to May 3, 2007. 

Considering all of these factors, I find that a penalty of $350.00 is appropriate. 

WHEREFORE, it is ORDERED that Citation No. 7794620 be changed from a 

104(d)(1) citation to a 104(a) citation, and it is ORDERED that S&S Dredging pay a penalty of 

$350.00 within thirty (30) days of the filing of this decision. 

/s/ L. Zane Gill

L. Zane Gill 

Administrative Law Judge 

Distribution (Via Certified Mail Return Receipt Requested): 

Terry Schildt, S & S Dredging, 405 Pope Trail, Covington, GA 30014 

Robin Rosenbluth, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

Room 2220, Arlington, VA 22209-2296 

W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson 

Blvd., Room 2220, Arlington, VA 22209-2296 

Melanie Garris, Office of Civil Penalty Compliance, MSHA, U.S. Department of Labor, 1100 

Wilson Blvd., 25th Floor, Arlington, VA 22209-3939

36 FMSHRC Page 2166
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

TELEPHONE: (202) 434-9958 / FAX: (202) 434-9949

August 6, 2014

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner,

v.

HANSON AGGREGATES NEW YORK,

INC.,

 Respondent.

CIVIL PENALTY PROCEEDING

Docket No. YORK 2013-66-M

A.C. No. 30-01283-310585

Mine: St. Johnsville Plant

DECISION ON CROSS-MOTIONS FOR SUMMARY DECISION

Appearances: Emily O. Roberts, Esq., U.S. Department of Labor, Nashville, Tennessee, for 

Petitioner;

David P. Kurz, Hanson Aggregates New York, Inc., Jamesville, New York, for 

Respondent.

Before: Judge Paez

This case is before me upon the Petition for the Assessment of Civil Penalty filed by the

Secretary of Labor (“Secretary”) under section 105(d) of the Federal Mine Safety and Health Act

of 1977 (“the Mine Act” or “the Act”), 30 U.S.C. § 815(d). An authorized representative of the

Secretary, on behalf of the Mine Safety and Health Administration (“MSHA”), issued Citation

No. 8708748 to Hanson Aggregates New York, Inc. (“Hanson” or “Respondent”) for a violation

of 30 C.F.R. § 46.9(b) because Hanson did not list the names of the training instructors or the

duration of the training on MSHA Form 5000-23. Hanson, which is pro se, timely contested the

citation and the case was assigned to me for disposition. The parties have jointly stipulated to

the facts and filed cross-motions for summary decision. 

I. STATEMENT OF THE CASE

Rather than hold a hearing, representatives for the Secretary and Hanson agreed that the

facts in this matter were not in dispute and the case could be disposed through summary

36 FMSHRC Page 2167

:

:

:

:

:

:

:

:

:

:

:
1

 For the purposes of this Decision, I refer to the Secretary’s Memorandum in Support of

the Secretary of Labor’s Motion for Summary Decision as “Sec’y Mem.”, Respondent’s Motion

for Summary Decision as “Resp’t Mot.”, and the Secretary’s reply brief as “Sec’y Reply.” 

decision. The parties jointly filed Stipulated Facts, then each filed cross-motions for summary

decision. In addition, the Secretary filed a reply to Respondent’s motion.1 

The Secretary asserts the following: (1) that 30 C.F.R. § 46.9(b) requires operators using

MSHA Form 5000-23 to include the information listed in section 46.9(b)(1) through (b)(5); and

(2) that the plain language of the regulation and other explanatory materials provided fair notice

of these requirements to Hanson. (Sec’y Mem. at 3–8; Sec’y Reply at 1–2.) Hanson contends

that 30 C.F.R. § 46.9(a) limits the application of section 46.9(b) to forms other than MSHA Form

5000-23. (Resp’t Mot. at 1–2.) Hanson also disputes the reasonableness of the Secretary’s

interpretation because MSHA Form 5000-23 does not provide spaces for the information

required by section 46.9(b). (Id. at 2.) Further, Hanson claims it did not receive fair notice

because MSHA inspectors did not bring the regulation to its attention prior to issuing Citation

No. 8708748. (Id.) Finally, Respondent argues that MSHA Form 5000-23 does not provide fair

notice because it does not explain that the information listed in section 46.9(b) is required. (Id.)

II. ISSUES

The issues before me are as follows: (1) whether 30 C.F.R. § 46.9(b) requires operators

to provide the information listed in paragraph (b) when using MSHA Form 5000-23; (2) whether

Hanson had fair notice of the Secretary’s interpretation of section 46.9(b); and, (3) if a violation

is found, whether the proposed penalty is appropriate. For the reasons that follow, the

Secretary’s motion for summary decision is GRANTED and Hanson’s motion for summary

decision is DENIED.

III. FACTUAL BACKGROUND

As set forth in the Stipulated Facts, the parties have stipulated to the following

preliminary facts:

(1) On November 27, 2012, Respondent (hereinafter “Hanson”) was the operator of [the]

St[.] Johnsville Plant, a crushed/broken limestone surface mine (hereinafter “[the]

Plant”), in Montgomery County, New York, Mine ID No. 3001283;

(2) The Plant is a “mine” as that term is defined in Section 3(h) of the Mine Act, 30 U.S.C.

§ 802(h); 

(3) On November 27, 2012, products of the Plant entered commerce, or the operations or

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

Mine Act, 30 U.S.C. § 803; 

36 FMSHRC Page 2168
(4) Approximately 9,007 hours were worked at the Plant in the year [in] which the contested

citation was issued;

(5) A copy of the citation at issue in this proceeding was served on Hanson by an authorized

representative of the Secretary;

(6) Hanson timely contested the citation;

(7) Hanson is subject to the jurisdiction of the Federal Mine Safety and Health Review

Commission and the presiding Administrative Law Judge has the authority to hear this

case and issue a decision regarding this case; and

(8) The proposed penalty will not affect Respondent’s ability to remain in business.

The parties further stipulate to the following facts regarding Citation [No.] 8708748:

(1) In 2012, Hanson completed the annual refresher training required by 30 C.F.R. § 46.8;

(2) Hanson used MSHA form 5000-23 to certify that the training had been completed. A

copy with two examples of form 5000-23 as Hanson completed them for the 2012

training is attached as Exhibit 1; 

(3) Hanson did not record on MSHA form 5000-23 a list of competent instructor(s) who

conducted [the] training or the duration of the training; 

(4) MSHA form 5000-23 does not indicate a space in which to write the information

described in (3);

(5) Hanson did not complete a supplement to MSHA form 5000-23 providing the

information described in (3);

(6) MSHA Inspector Kevin Forgette issued Citation [No.] 8708748 to Hanson on

November 27, 2012 under 30 C.F.R. § 46.9(b) because Hanson did not include the

information described in (3) in its certification of annual refresher training;

(7) To abate the citation, Hanson entered the information described in (3) on the previously

completed MSHA forms 5000-23. A copy of the forms as they appeared after abatement

is attached as Exhibit 2.

(Stipulated Facts at 1–2.)

36 FMSHRC Page 2169
IV. PRINCIPLES OF LAW

A. Summary Decision

Commission Rule 67 provides the standard for granting any motion for summary

decision:

A motion for summary decision shall be granted only if the entire record,

including pleadings, depositions, answers to interrogatories, admissions, and

affidavits, shows: (1) That there is no genuine issue as to any material fact; and

(2) That the moving party is entitled to summary decision as a matter of law.

29 C.F.R. § 2700.67(b). 

B. Principles of Regulatory Interpretation

Regulatory interpretation is a two-step process. Walker Stone Co. v. Sec’y of Labor, 156

F.3d 1076, 1080 (10th Cir. 1998). First, the Commission determines whether a regulation is

ambiguous. Id. A regulation is ambiguous when its meaning is open to “plausible and divergent

interpretations.” Daanen & Janssen, 20 FMSHRC 189, 192 (Mar. 1998). Unambiguous

regulatory provisions “must be enforced as they are written unless the regulator clearly intended

the words to have a different meaning or unless such a meaning would lead to absurd results.” 

Jim Walter Res., Inc., 28 FMSHRC 579, 587 (Aug. 2006). Second, if the regulation is

ambiguous, the Commission “determine[s] whether the Secretary’s interpretation of [a]

regulation is reasonable and whether the operator was given fair notice of its requirements.” 

Consolidation Coal Co., 14 FMSHRC 956, 969 (June 1992). The Secretary’s interpretation of

its own regulation is controlling unless “plainly erroneous or inconsistent with the regulation.” 

Auer v. Robbins, 519 U.S. 452, 461 (1997). 

C. Fair Notice

An operator has received fair notice when “a reasonably prudent person familiar with the

mining industry and the protective purposes of the standard would have recognized the specific

prohibition or requirement of the standard.” Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov.

1990). Published notices informing the regulated community of the Secretary’s interpretation

are are a factor in determining fair notice. See Wolf Run Mining Co., 32 FMSHRC 1669, 1682

(Dec. 2010).

36 FMSHRC Page 2170
2

 Section 46.9(b) does not specifically reference MSHA Form 5000-23, and I need not

address the form’s implications because I have determined that the text of section 46.9 itself

V. DISCUSSION, ANALYSIS, AND CONCLUSIONS OF LAW

A. Summary Decision is Appropriate

The parties have jointly stipulated to the facts but disagree over the application of the

regulation to those facts. Based on the entire record, I determine that there is no genuine issue as

to any material fact. Therefore, I conclude that the issues before me are appropriate for summary

decision pursuant to Commission Procedural Rule 67(b), 29 C.F.R. § 2700.67(b). 

B. Interpretation of 30 C.F.R. § 46.9(b)

MSHA cited Hanson for violating section 46.9(b), which is a recordkeeping regulation

for purposes of miner training oversight. Section 46.9(b) states that “[t]he form must include . . .

the duration of training [and] the name of the competent person who provided the training. . . .” 

30 C.F.R. § 46.9(b). Hanson stipulated that it did not include the duration of training and the

name of the competent person who provided the training when filling out MSHA Form 5000-23. 

(Stipulated Facts at 2.) Thus, the issue here is whether the “form” mentioned in section 46.9(b)

includes MSHA Form 5000-23. For the reasons below, I determine that the regulation is

ambiguous, but the Secretary’s interpretation of the regulation is reasonable and entitled to

deference. Consequently, I conclude that section 46.9(b) requires operators using MSHA Form

5000-23 to provide the information listed in section 46.9(b)(1) through (b)(5), even though

MSHA Form 5000-23 does not request or provide space for that information.

1. The regulation is ambiguous.

A regulation is ambiguous when it is open to “plausible and divergent interpretations.” 

Daanen & Janssen, 20 FMSHRC at 192. The Secretary asserts that the term “form” clearly

applies to MSHA Form 5000-23. (Sec’y Mem. at 3.) However, section 46.9(b) does not define

“form” or explicitly include MSHA Form 5000-23. 30 C.F.R. § 46.9(b). Instead, paragraph (a)

of section 46.9 discusses two types of “form[s]” that section 46.9(b) may include. See generally

Morton Int’l, Inc., 18 FMSHRC 533, 536 (Apr. 1996) (requiring provisions to be read

harmoniously). Section 46.9(a) states as follows: “You must record and certify on MSHA Form

5000-23, or on a form that contains the information listed in paragraph (b) of this section, that

each miner has received training required under this part.” I note that section 46.9(a) uses

commas to set apart from “MSHA Form 5000-23” the phrase “or on a form that contains the

information listed in paragraph (b) of this section.” 30 C.F.R. § 46.9(a). This phrasing therefore

permits an alternative interpretation whereby the “form” mentioned in section 46.9(b) could refer

solely to “a form that contains the information listed in paragraph (b) of this section” mentioned

in section 46.9(a), thereby excluding MSHA Form 5000-23. Accordingly, I determine that the

regulation is ambiguous. See Daanen & Janssen, 20 FMSHRC at 192.2

36 FMSHRC Page 2171

(continued...)
permits alternative readings. Nevertheless, I note that MSHA Form 5000-23 includes neither

space for operators to provide the information required by section 46.9(b) nor instructions to do

so. (See Stipulated Facts at 2, Ex. 1.) Such a design likewise contradicts the Secretary’s claim

that section 46.9(b) unambiguously applies to MSHA Form 5000-23.

3 The preamble explains that operators already used MSHA Form 5000-23 to comply

with training certification requirements under 30 C.F.R. part 48. Final Rule, 64 Fed. Reg. at

53,121. Accordingly, section 46.9(a) allows operators to adapt MSHA Form 5000-23 for dual

use under 30 C.F.R. part 46, rather than developing another form, “so long as the information

required by final [section] 46.9(b) is included on the form.” Id.

2. The Secretary’s interpretation of the regulation is reasonable and entitled to

deference.

As I have determined the regulation to be ambiguous, I must therefore determine whether

the Secretary’s interpretation of the regulation is reasonable. See Walker Stone Co., 156 F.3d at

1080. The Secretary interprets “form” in section 46.9(b) to include both MSHA Form 5000-23

and the alternative “form” mentioned in section 46.9(a). (Sec’y Mem. at 3.) For the following

three reasons, I determine the Secretary’s interpretation of the regulation to be reasonable. First,

the Secretary’s interpretation is consistent with the language of the regulation. Here, the

Secretary interprets “form” in section 46.9(b) as a general term that encompasses every type of

form mentioned in section 46.9(a), including MSHA Form 5000-23. (Sec’y Mem. at 3.) 

Looking at the text, the regulation does not provide definitions that restrict the meaning of

“form” in section 46.9(b) to a particular type of form. 30 C.F.R. § 46.9. Although the lack of

definitions does not necessarily prohibit a more restrictive reading, the Secretary’s interpretation

is a permissible reading of the regulation.

Second, the Secretary’s interpretation is consistent with the dual purposes underlying this

recordkeeping regulation: (1) consistency of information; and (2) flexibility. See Training and

Retraining of Miners Engaged in Shell Dredging or Employed at Sand, Gravel, Surface Stone,

Surface Clay, Colloidal Phosphate, or Surface Limestone Mines: Final Rule, 64 Fed. Reg.

53,080, 53,099, 53, 121 (Oct. 2, 2000) [hereinafter “Final Rule”]; see also Ideal Cement Co., 

12 FMSHRC at 2414 (“[A regulation] must be construed in light of its underlying purpose.”). 

Indeed, MSHA intended for section 46.9(b) to apply generally to “training records and

certificates” rather than a particular type of form. Final Rule, 64 Fed. Reg. at 53,099. Further,

section 46.9(a) allows operators flexibility in choosing a form approved by the Secretary with

the intent to minimize their paperwork burden. Id. at 53,121. Accordingly, section 46.9(a)

operates to approve any form containing the “minimum information” listed in section 46.9(b). 

Id. Specifically, section 46.9(a) approves the use of existing MSHA Form 5000-23, which some

operators have used to comply with the Secretary’s Part 48 rules.3 Id. Thus, the Secretary’s

interpretation of “form” in section 46.9(b) to include MSHA Form 5000-23 ensures that mine

operators will provide the required information regardless of the form used and allows those

operators flexibility in the form used. The Secretary’s interpretation is therefore consistent with

36 FMSHRC Page 2172

2

 (...continued)
his purpose of maintaining consistent records and allowing operator flexibility to reuse MSHA

Form 5000-23 for 30 C.F.R. part 46 compliance.

Third, the Secretary’s interpretation of the regulation is consistent with the safetypromoting purposes of the Mine Act. See Emery Mining Corp. v. Sec’y of Labor, 744 F.2d 1411,

1414 (10th Cir. 1984) (requiring regulatory interpretations to be consistent with the purpose of

the underlying statute). Miner training is a critical element of an effective safety and health plan

that protects the safety of the miner. See 30 U.S.C. § 801. The duration of the training and the

name of the instructor who provided the training allow MSHA to determine if operators have

provided adequate training to their miners. Final Rule, 64 Fed. Reg. at 53,122. Requiring

operators using MSHA Form 5000-23 to provide the information listed in section 46.9(b)

facilitates effective oversight of miner training, which promotes the health and safety of miners. 

Conversely, a more restrictive reading of “form” in section 46.9(b) would permit operators using

MSHA Form 5000-23 to withhold important information at the expense of the health and safety

of their miners.

Where the Secretary’s interpretation of a regulation is reasonable, deference is accorded

to that interpretation even if it differs from what “a first-time reader of the regulation . . . might

conclude was the ‘best’ interpretation of [the] language.” Gen. Elec. Co. v. EPA, 53 F.3d 1324,

1327 (D.C. Cir. 1994) (citation omitted). Because I have determined that the Secretary’s

interpretation of the regulation is reasonable and consistent with the purposes of the regulation

and the Mine Act, I must defer to the Secretary’s interpretation.

C. MSHA Provided Fair Notice of the Secretary’s Interpretation

The Secretary does not claim that Hanson had actual notice, and I have determined

section 46.9(b) to be ambiguous. However, MSHA does not have to provide Hanson with actual

notice, inasmuch as MSHA has provided sufficient notice of the Secretary’s interpretation by

publishing multiple explanatory notices on its Web site. See generally Mainline Rock & Ballast,

693 F.3d 1181, 1187 (10th Cir. 2012) (holding that adequate notice of regulatory requirements

can be derived from published explanatory notices). These explanatory notices plainly indicate

that operators must include the duration of training and a list of competent instructors on MSHA

Form 5000-23 if they elect to use the form under part 46. (Sec’y Mem. at Ex. P–3, Ex. P–5.) 

Moreover, the Final Rule implementing section 46.9(b) also indicates that training records and

certificates must include this information regardless of the particular type of form. 64 Fed. Reg.

at 53,121. A reasonably prudent person familiar with the mining industry and the protective

purposes of this recordkeeping regulation would have availed themselves of the various

materials that described the specific requirements of this standard. Accordingly, I conclude that

Hanson had fair notice regarding the requirements of section 46.9(b).

In sum, I defer to the Secretary’s reasonable interpretation and determine that section

46.9(b) requires operators using MSHA Form 5000-23 to provide a list of the competent

instructor(s) who conducted the training and the duration of the training. Hanson stipulated to

omitting this information on MSHA Form 5000-23. Furthermore, MSHA provided Hanson with

36 FMSHRC Page 2173
fair notice of the Secretary’s interpretation of 30 C.F.R. § 46.9(b) by publishing explanatory

notices on its Web site. Consequently, I conclude that Hanson violated 30 C.F.R. § 46.9(b), and

the Secretary is entitled to summary decision as a matter of law under Commission Rule 67,

29 C.F.R. § 2700.67(b). Citation No. 8708748 is, therefore, AFFIRMED as written.

VI. PENALTY

The Commission assesses penalties de novo for violations of the Mine Act. Douglas R.

Rushford Trucking, 22 FMSHRC 598, 600–01 (May 2000). When assessing a civil penalty,

section 110(i) of the Mine Act requires that I consider six criteria, including the operator’s

history of previous violations, the appropriateness of the penalty relative to the size of the

operator’s business, the operator’s negligence, the penalty’s effect on the operator’s ability to

continue business, the gravity of the violation, and the demonstrated good faith of the operator in

attempting to achieve rapid compliance. 30 U.S.C. § 820(i). The criteria are not required to be

given equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).

I recognize that this case is before me because Hanson relied on common sense rather

than a lawyer. In fact, when informed of the section 46.9(b) requirements, Hanson provided the

requested information to abate the citation in good faith. (Stipulated Facts at 2.) Perhaps

Hanson would have provided the required information earlier if it had engaged in a detailed,

legal analysis of an ambiguous regulation. Instead, Hanson trusted that MSHA Form 5000-23

would contain all the requirements for compliance. It may be time for MSHA to reconsider its

earlier determination and provide the regulated community with a straightforward, sensible form. 

Although section 46.9(a) does not mandate the use of MSHA Form 5000-23, the form’s design

predictably misleads operators into violating the standard. Indeed, commentators predicted this

misplaced trust and suggested that MSHA Form 5000-23 be revised because it was “confusing.” 

Final Rule, 64 Fed. Reg. at 53,121. Despite MSHA’s determination that MSHA Form 5000-23

was not “so confusing as to be unusable,” id., the Secretary may be well-advised to adopt loftier

goals than providing a “[not] unusable” form. Given the circumstances and confusing design of

the form, I find Hanson’s negligence to be on the very low end of the spectrum. 

Moreover, I find that the gravity of the violation is minimal, as I agree that Hanson’s

failure to provide complete training records in this case created no likelihood of injury and was

expected to result in no lost workdays because the required training had been provided. (Sec’y

Mem. at Ex. P–1; Stipulated Facts at 2.) Looking at MSHA’s public, online retrieval database, I

note Hanson’s insignificant history of prior violations at the St. Johnsville Plant, which is limited

to eight citations and does not include any prior citations regarding section 46.9(b). See Mine

Safety & Health Admin., Mine Data Retrieval System, http://www.msha.gov/drs/drshome.htm

(last visited August 5, 2014). I have also considered Hanson’s size and the penalty’s lack of

effect on Hanson’s ability to continue business. (Stipulated Facts at 1–2.) In light of the factors

above, especially as they relate to Hanson’s degree of negligence, I conclude that a penalty of

$50.00 is appropriate for Citation No. 8708748.

36 FMSHRC Page 2174
4

 Payment should be sent to: U.S. Department of Labor, MSHA, Payment Office,

P.O. Box 790390, St. Louis, MO 63179-0390. Please include docket and A.C. numbers.

VII. ORDER

In light of the foregoing, IT IS ORDERED that the Secretary’s motion for summary

decision is GRANTED and Hanson’s motion for summary decision is DENIED. Hanson

Aggregates New York, Inc. is hereby ORDERED to PAY a penalty of $50.00 within 40 days of

this decision.4

/s/ Alan G. Paez

Alan G. Paez

Administrative Law Judge

Distribution:

Emily O. Roberts, Esq., U.S. Department of Labor, Office of the Solicitor, 211 Seventh Avenue

North, Suite 420, Nashville, TN 37219

David P. Kurz, Hanson Aggregates New York Inc., P.O. Box 513, Jamesville, NY 13078

/mlb

36 FMSHRC Page 2175
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

721 19th STREET, SUITE 443 

DENVER, CO 80202-2536 

TELEPHONE: 303-844-3577 / FAX 303-844-5268 

August 7, 2014 

DECISION

Appearances: Courtney Przybylski, Esq., Office of the Solicitor, U.S. Department of 

Labor, Denver, Colorado, for Petitioner; 

Nicholas Scala, Esq., Law Office of Adele L. Abrams PC, Beltsville, 

Maryland, for Respondent. 

Before: Judge Manning 

These cases are before me upon notices of contest by Knife River Construction and a 

petition for assessment of civil penalty filed by the Secretary of Labor, acting through the Mine 

Safety and Health Administration (“MSHA”), against Knife River Construction, pursuant to 

sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 

820 (the “Mine Act”). The parties introduced testimony and documentary evidence at a hearing 

held in Sacramento, California and filed post-hearing briefs. One section 107(a) order and two 

section 104(a) citations were adjudicated at the hearing. The mine is an aggregate operation in 

San Joaquin County, California.

KNIFE RIVER CONSTRUCTION, 

Contestant 

v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

KNIFE RIVER CONSTRUCTION, 

 Respondent 

 CONTEST PROCEEDINGS 

Docket No. WEST 2013-0827-RM 

Order No. 8699159; 05/01/2013 

Docket No. WEST 2013-0828-RM 

Citation No. 8699160; 05/01/2013 

Docket No. WEST 2013-0829-RM 

Citation No. 8699161; 05/01/2013 

Knife River Vernalis Plant 

Mine Id. 04-05459 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2013-1009-M 

A.C. No. 04-05459-327568 

Knife River Vernalis Plant 

36 FMSHRC Page 2176

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I. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

A. Order No. 8699159 and Citation No. 8699160

On May 1, 2013, MSHA Inspector Brian Chaix issued Order No. 8699159 under section 

107(a) of the Mine Act and Citation No. 8699160 under section 104(a). Order No. 8699159 is an 

imminent danger order and Citation No. 8699160 alleges a violation of section 56.14101(a)(1) of 

the Secretary’s safety standards. (Exs. G-1,3). Both the order and citation state that “scraper 

#1690402/LD9W95 did not stop on a grade when tested. The equipment was in service at the 

time of inspection, handling both raw feed and waste. The grade on which it was tested 

measured approximately 12-14%” Id. The order also states that “[a] verbal imminent danger 

order was issued to the site Foreman and regional Safety Director at approximately 0935, 

requiring that the scraper be removed from service until the brakes had been repaired and 

confirmed.” (Ex. G-1). 

Citation No. 8699160 also states that “[m]iners operating equipment which are not 

capable of stopping as required by the standard risk grave injury.” (Ex. G-3). With regard to the 

citation, Inspector Chaix determined that an injury was highly likely to occur and that such an 

injury could reasonably be expected to be fatal. Further, he determined that the violation was 

Significant and Substantial (“S&S”), the operator’s negligence was moderate, and that one 

person would be affected. Section 56.14101(a)(1) of the Secretary’s safety standards requires, in 

pertinent part “[s]elf-propelled mobile equipment shall be equipped with a service brake system 

capable of stopping and holding the equipment with its typical load on the maximum grade it 

travels.” 30 C.F.R. § 56.14101(a)(1). The Secretary proposed a penalty of $1,140.00 for this 

citation. 

For the reasons set forth below, I affirm Order No. 8699159 and modify Citation No. 

8699160 to be non S&S. 

Discussion and Analysis - Order No. 8699159

 Inspector Chaix issued an oral imminent danger order immediately upon witnessing a 

scraper with defective brakes and then reduced that oral order into writing shortly thereafter in 

Order No. 8561259. 

Section 3(j) of the Mine Act defines “imminent danger” as the “existence of any 

condition or practice in a coal or other mine which could reasonably be expected to cause death 

or serious physical harm before such condition or practice can be abated.” 30 U.S.C. § 802(j). 

The Commission has held: 

Imminent danger orders permit an inspector to remove miners 

immediately from a dangerous situation, without affording the 

operator the right of prior review, even where the mine operator 

did not create the danger and where the danger does not violate the 

Act or the Secretary’s regulations. This is an extraordinary power 

36 FMSHRC Page 2177
that is available only when the “seriousness of the situation 

demands such immediate action.” 

 Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991) (quoting the legislative 

history of the Federal Coal Mine Health and Safety Act of 1969, the predecessor to the 1977 

Act). 

An imminent danger exists “when the condition or practice observed could reasonably be 

expected to cause death or serious physical harm to a miner if normal mining operations were 

permitted to proceed in the area before the dangerous condition is eliminated.” Wyoming Fuel 

Co., 14 FMSHRC 1282, 1290 (Aug. 1992) (quoting Rochester & Pittsburgh Coal Co., 11 

FMSHRC 2159, 2163 (Nov. 1989). While the concept of imminent danger is not limited to 

hazards that pose an immediate danger, “an inspector must ‘find that the hazardous condition has 

a reasonable potential to cause death or serious injury within a short period of time.’ ” 

Cumberland Coal Resources, LP, 28 FMSHRC 545, 555 (Aug. 2006). Inspectors must 

determine whether a hazard presents an imminent danger without delay, and an imminent danger 

determination must be supported “unless there is evidence that [the inspector] had abused his 

discretion or authority.” Rochester & Pittsburgh Coal Co., 11 FMSHRC at 2164. 

 While an inspector has considerable discretion in determining whether an imminent 

danger exists, that discretion is not without limits. Under the circumstances, an inspector must 

make a reasonable investigation of the facts and must make his determination upon the basis of 

the facts known or reasonably available to him. As the Commission explained in Island Creek 

Coal Co.: 

While the crucial question in imminent danger cases is whether the 

inspector abused his discretion or authority, the judge is not 

required to accept an inspector’s subjective “perception” that an 

imminent danger existed. Rather, the judge must evaluate whether, 

given the particular circumstances, it was reasonable for the 

inspector to conclude that an imminent danger existed. The 

Secretary still bears the burden of proving his case by a 

preponderance of the evidence. Although an inspector is granted 

wide discretion because he must act quickly to remove miners 

from a situation that he believes to be hazardous, the 

reasonableness of an inspector’s imminent danger finding is 

subject to subsequent examination at the evidentiary hearing. 

15 FMSHRC 339, 346-47 (Mar. 1993). An inspector “abuses his discretion...when he orders the 

immediate withdrawal of miners under section 107(a) in circumstances where there is not an 

imminent threat to miners.” Utah, Power & Light Co., 13 FMSHRC at 1622-23. 

 I find that Inspector Chaix did not abuse his discretion when he issued Order No. 

8699159; his belief that the defective brakes could lead to a serious injury of the operator of the 

equipment or the inspection party was reasonable. The inspector saw a large piece of equipment 

carrying a heavy load upon a steep grade. The brakes of that equipment did not function 

36 FMSHRC Page 2178
properly and could not stop the vehicle upon the grade. Although the cited brakes were not 

completely incapacitated, defective brakes have caused numerous injuries and fatalities in mines. 

Defective brakes could reasonably cause a serious injury to miners and therefore constitute an 

imminent threat to miners. Considering the facts, Inspector Chaix’s decision to issue an oral 

imminent danger order was reasonable. Order No. 8699159 is AFFIRMED.

1

 

Discussion and Analysis - Citation No. 8699160

Respondent does not contest the fact of violation for Citation No. 8699160, but disputes 

the penalty as well as the S&S,2 highly likely, and fatal designations. 

 I find that the Secretary did not fulfill his burden to establish that Citation No. 8699160 

was S&S because the Secretary failed to show that the violation was reasonably likely to 

contribute to an injury. Although the brakes on the cited scraper were defective, they did not 

render the equipment uncontrollable. The brakes failed to stop the equipment on the grade, but 

stopped the equipment quickly at the bottom of the grade. (Tr. 113). At all times, the scraper 

moved at a slow velocity, traveling only two to three miles per hour when descending the grade. 

(Tr. 155). It was uncommon for the scrapers to travel this grade at the mine and the scraper had 

not done so for more than a month. (Tr. 141). I credit Kevin Farwell, the operator of the scraper 

at the time, that he would usually not use the brakes on the grade and would have stopped 

operating the vehicle when he thought it posed a danger. (Tr. 161, 170). He testified that he 

would rely on the engine retarder to “hold the rig back.” (Tr. 161). Furthermore, there was no 

equipment working in the area and no pedestrian traffic. The inspection party was present, but at 

the top of the hill rather than downgrade from the scraper. The cited area was a cut grade, which 

means it was surrounded by walls that contained the scraper. (Tr. 77). 

 1

 I reject Respondent’s argument that if a citation issued in conjunction with an 107(a) order that 

addresses the same condition as the 107(a) order is not S&S then the 107(a) order must be vacated. A 

judge considers all evidence that the parties present de novo when reviewing an S&S designation. When 

reviewing a 107(a) imminent danger order, the judge reviews the order to determine if the inspector, who 

must make a quick decision at the time of issuance, “abuses his discretion[.]” Utah, Power & Light Co., 

13 FMSHRC at 1622-23. The difference between the review processes, although the underlying events 

are the same, means that a 107(a) order can be upheld without an underlying S&S violation. The 

Commission, furthermore, has held that the condition underlying an imminent danger order does not 

necessarily have to violate the Act, which suggests that no S&S violation is required to uphold a 107(a) 

order. Id. 

2

 An S&S violation is a violation “of such nature as could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d) (2006). In 

order to establish the S&S nature of a violation, the Secretary must prove: “(1) the underlying violation of 

a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of danger to safety – 

contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an 

injury; and (4) a reasonable likelihood that the injury will be of a reasonably serious nature.” Mathies 

Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 

1995); Austin Power Co., Inc., 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). The 

Commission has held that “[t]he test under the third element is whether there is a reasonable likelihood 

that the hazard contributed to by the violation...will cause injury.” Musser Eng’g, Inc. and PBS Coals, 

Inc., 32 FMSHRC 1257, 1281 (Oct. 2010). 

36 FMSHRC Page 2179
The Secretary relies upon the size of the equipment and steepness of the grade to support 

his S&S designation, arguing that each contributed to the likelihood of an injury as a result of an 

overtravel hazard. Both the mass of the equipment and the grade it travels upon may contribute 

to the likelihood of an injury by making the vehicle more difficult to stop. Although the operator 

of the scraper could be hurt in a sudden stop or collision with the wall, considering continued 

normal mining operations, the speed of the scraper, and the condition of the brakes, I find it was 

unlikely that the operator would be injured as a result of the cited condition. I credit the 

testimony of Farwell that, at a speed of three miles per hour, the engine retarder would keep the 

scraper under control. I agree with the Secretary that, as a general matter, operating heavy 

equipment on a grade without functioning service brakes creates a potential S&S violation, but 

under the facts here it was unlikely that Farwell would have lost control of the equipment. It was 

also unlikely that, in the event of an emergency, the malfunctioning service brakes would have 

contributed to an accident in which there was an injury. The Secretary did not present evidence 

to show that the cited condition was reasonably likely to contribute to a serious injury under 

continued normal mining operations and therefore the violation was not S&S. 

 Although the cited condition was unlikely to lead to an injury, if an injury occurred as a 

result of the condition it was reasonably likely that injury would be serious. As there were no 

miners working in the area, the operator was the most likely person to be injured. In the event of 

a rollover of the vehicle, the operator could suffer permanently disabling injuries. Due to the low 

speed of the vehicle, however, a rollover was unlikely. The most likely injury would be a lost 

workdays restricted duty type of injury. The gravity of this violation was serious. 

 I find that the violation was the result of Respondent’s moderate negligence. The service 

brakes failed to hold when Farwell operated the scraper upon the grade, but performed well upon 

flat surfaces, which made it difficult for the operator to know that the brakes were defective. 

Farwell tested the brakes on the level route he expected to travel at the start of his shift and the 

brakes functioned properly. (Tr. 150). A berm blocked the area of the mine with the grade at the 

beginning of the shift and the operator only entered the area after production shut down and the 

berm was removed. Farwell did not expect to operate the vehicle on the grade the day of the 

inspection and had not traveled down the grade before the inspector witnessed it. That trip was 

Farwell’s first opportunity to test the brakes on the grade. (Tr. 151). Farwell credibly testified 

that, under normal circumstances, he would have tested the brakes on this first run down the 

grade and, if the brakes failed to stop the scraper on the grade, he would have taken the scraper 

out of service to have the brakes checked and repaired as needed. (Tr. 163-65). After the brakes 

failed to hold the scraper on the grade in the presence of the inspector, however, Farwell should 

have stopped the equipment to take it out of service rather than driving back around the other 

side to return to the inspection party. 

I hereby AFFIRM Order No. 8699159 and MODIFY Citation No. 8699160. With 

regard to Citation No. 8699160, I find that the cited condition was unlikely to contribute to an 

injury and therefore is non-S&S; a penalty of $900.00 is appropriate for this violation. 

36 FMSHRC Page 2180
B. Citation No. 8699161

On May 1, 2013, Inspector Chaix issued Citation No. 8699161 under section 104(a) of 

the Mine Act, alleging a violation of section 56.14107 of the Secretary’s safety standards. (Ex. 

G-10). The citation states, in part, that “[t]wo vehicles were observed unattended on a grade on 

the mine haul road, while neither ribbed, banked, nor chocked. Neither vehicle was carrying 

chocks, but a bank was available.” Id. Inspector Chaix determined that an injury was unlikely to 

occur, but that such an injury could reasonably be expected to result in lost workdays or 

restricted duty. He determined that the operator’s negligence was moderate, and that one person 

would be affected. Section 56.14207 of the Secretary’s safety standards requires “[m]obile 

equipment shall not be left unattended unless the controls are placed in the park position and the 

parking brake, if provided, is set. When parked on a grade, the wheels or tracks of mobile 

equipment shall be either chocked or turned into a bank.” 30 C.F.R. § 56.14207. The Secretary 

proposed a penalty of $100.00 for this citation. 

For the reasons set forth below, I affirm Citation No. 8699161. 

Discussion and Analysis

 I find that the cited conditions violated section 56.14107 because the two vehicles cited 

were parked on a grade, but the wheels were not chocked or turned into a bank. Section 

56.14207 can be broken down into four requirements for parked mobile equipment: (1) an 

unattended vehicle (2) must be placed in park (3) with the parking brake set and (4) tires must be 

choked or turned into a bank if a vehicle is on a grade. The cited vehicles were unattended, 

parked with parking brakes set on a grade, but the tires were neither choked nor turned into a 

bank. 

I find that the vehicles were unattended because no operator was in a position to 

immediately control the vehicles. Although Respondent argues that the vehicles were not 

unattended because the operators were not far from the vehicles, Respondent’s witnesses agree 

with Inspector Chaix that they exited their vehicles. (Tr. 57-58, 121-22, 182). A miner outside 

of, but close to, a vehicle cannot operate the vehicle and therefore cannot attended the vehicle 

under the standard. Nevada Cement Co., 18 FMSHRC 1653, 1655 (Sept. 1996) (ALJ). A miner 

in proximity to an improperly parked vehicle, furthermore, is exposed to an overtravel hazard if 

the vehicle rolls. A vehicle is unattended, regardless of the proximity of miners to the vehicle, if 

the operator is not in a position to immediately operate that vehicle. 

Respondent argues that the vehicles were not actually “parked” because the drivers were 

going to immediately return to their vehicles. Section 56.14207, however, focuses upon 

unattended vehicles. When the standard states “when parked on a grade,” the word “parked” is 

not an additional requirement within the standard. It references the fulfillment of the first three 

requirements of the standard. A vehicle is parked if it is unattended. If a vehicle is unattended 

and placed in park with a parking brake set, the vehicle is clearly “parked” under the safety 

standard and by any definition of the word. It is immaterial if the vehicle is in an area that 

vehicles are not commonly parked; the point of the standard is to create uniform procedures for 

operators to follow when exiting and parking vehicles anywhere in the mine. 

36 FMSHRC Page 2181
The vehicles were placed in park with parking brakes set, and all the witnesses agree that 

the cited vehicles were parked upon a grade or slope. (Tr. 58, 131, 197).3

 The tires were not 

chocked or turned into a bank. The condition cited in Citation No. 8699161 violates section 

56.14207. The gravity of this violation was low. 

I find that Respondent’s moderate to high negligence caused the conditions cited in 

Citation No. 8699161. Respondent’s witnesses, who parked the cited vehicles improperly, 

contend that they did not park the vehicles properly because the inspector insisted upon stopping 

immediately, the tires were turned toward the bank, it was unusual to stop in the area, and that 

the SUV was new. Both a foreman and the safety supervisor for the region parked vehicles 

improperly. Both men were responsible for parking properly, regardless of whether the inspector 

said to stop or they stopped independently.4 The fact that both men failed to parked in 

compliance with the standard and produced an array of excuses as to why they did not suggests 

that employees working at the mine likely ignored proper parking procedures and the two 

witnesses were simply doing what was routine for them. Regardless of whether that is true, both 

should have known to comply with section 56.14107(a) and did not do so. A penalty of $200.00 

is appropriate for this violation. I increased the penalty from that proposed by the Secretary 

taking into consideration that the negligence actions were committed by two management 

employees. 

II. APPROPRIATE CIVIL PENALTIES 

 Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. I have considered the Assessed Violation History Report, which was 

submitted by the Secretary. (Ex. G-14). The Secretary’s records show that Respondent had only 

one violation in the previous 24 months and the violation was not S&S. Based on the penalty 

points assigned by the Secretary in Exhibit A to the petition for penalty, Respondent is a medium 

to small-sized operator. Id. The violations were abated in good faith. The penalties assessed in 

this decision will not have an adverse effect upon the ability of Knife River Construction to 

continue in business. The gravity and negligence findings are set forth above. 

 

 3

 Respondent argues that the cited vehicles passed a roll test and therefore did not violate the 

standard. Kevin Smudrick, the Northern California Safety manager and operator of one of the vehicles, 

performed the roll test, however, after moving the vehicle, which did not show that the location where the 

vehicles were cited did not have a grade. All three witnesses agree that the vehicles were originally 

parked on a grade. 

4

 I find no merit in Respondent’s argument that the inspector “set up” Respondent when he asked 

to stop. Even if this contention is true, furthermore, it is not grounds to vacate a citation. MSHA 

inspectors must cite any violations they find. 30 U.S.C. § 814(a). The inspector did not cause this 

violation by asking to stop; the operators had the opportunity to properly park the vehicles before exiting. 

36 FMSHRC Page 2182
III. ORDER

For the reasons set forth above, I AFFIRM Order No. 8699159 and Citation No. 

8699161 and MODIFY Citation No. 8699160. Knife River Construction is ORDERED TO 

PAY the Secretary of Labor the sum of $1,100.00 within 30 days of the date of this decision.5

The three contest proceedings are hereby DISMISSED. 

/s/ Richard W. Manning 

Richard W. Manning 

Administrative Law Judge 

Distribution: 

Courtney M. Przybylski, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 

Broadway, Suite 800, Denver, CO 80202 (Certified Mail) 

Nicholas Scala, Esq., Law Office of Adele L. Abrams PC, 4740 Corridor Place, Suite D, 

Beltsville, MD 20705 (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. 

36 FMSHRC Page 2183
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue N.W., Suite 520N

Washington, D.C., 20004-1710

Telephone: (202) 434-9900 Fax: (202) 434-9949

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : DOCKET NO. WEVA 2011-0287

Petitioner, : A.C. No. 46-06578-236066

:

v. :

: 

VIRGINIA DRILLING COMPANY, LLC : Mine: Red Fox Surface Mine

Respondent. :

August 11, 2014

AMENDED DECISION

Appearances: Virginia Fritchey, Office of the Solicitor, U.S. Department of Labor,

Arlington, Virginia, for Petitioner;

Gene W. Bailey, Hendrickson & Long, PLLC, Charleston, West Virginia,

for Respondent.

Before: L. Zane Gill, U.S. Administrative Law Judge

 This case involves a petition for assessment of civil penalty filed by the Secretary of

Labor, acting through the Mine Safety and Health Administration, against Virginia Drilling

Company, LLC, at its Red Fox Surface Mine, pursuant to sections 105 and 110 of the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (2012) (the “Mine Act” or

“Act”). The case comprises a single 104(d) (1) citation written on April 14, 2010, Citation No.

8107680. The parties presented testimony and documentary evidence at the hearing held in

Beckley, West Virginia, on October 2, 2012. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Stipulations

The parties submitted the following stipulations prior to the hearing and on the date of

hearing: 

1. Virginia Drilling is a drilling and blasting company licensed by the Bureau

of Alcohol, Tobacco, Firearms, and Explosives (“ATF”).

2. Virginia Drilling’s corporate offices are located in Vansant, VA.

3. Virginia Drilling was providing ATF-licensed blasting services at the Red

Fox Surface Mine in April 2010 when Citation No. 8107680 was issued.

36 FMSHRC Page 2184
4. In April 2010, Red Fox Surface Mine was operated by Justice Highwall,

Inc., a subsidiary of Justice Energy.

5. Justice Highwall, Inc was an “operator” as defined in Section 3(d) of the Act

at the coal mine which the citation in this proceeding was issued.

6. The products of the mine at which Citation No . 8107680 was issued entered

commerce, or the operation or products thereof affected commerce, within

the meaning and scope of Section 4 of the Act.

7. The penalty which has been assessed for this violation pursuant to 30 U.S.C.

§ 820 will not affect the ability of Virginia Drilling to remain in business.

8. MSHA Coal Mine Inspector John Stone, whose signature appears in Block

22 of Citation No. 8107680, was acting in his official capacity as an

authorized representative for the Secretary of Labor when the citation was

issued.

9. True copies of Citation No. 8107680, with any and all modifications and

abatements, were served on Virginia Drilling or its agent as required by the

Act.

10. Citation No. 8107680, along with any and all modifications and abatements,

were issued on the dates stated therein and were issued by a duly authorized

representative of the Department of Labor, MSHA.

11. The Citation contained in Exhibit S-1 attached hereto is an authentic copy of

Citation No. 8107680, including any and all modifications or abatements.

12. Citation No. 8107680 was timely abated.

13. Citation No. 8107680, along with any and all modifications and abatements,

may be admitted into evidence, without objection, although Respondent may

dispute specific allegations contained within the order.

14. On April 14, 2010 MSHA issued Citation No. 8107680 citing a violation of

30 C.F.R. § 77.1303(pp) of the Federal Mine Safety and Health Act.

15. Citation No. 8107680 states as follows

A cutoff shot was discovered on Monday 4/12/2010 at the 9 seam put in

which 12 holes did not shoot. An adequate inspection of this blast area was

not performed by the blaster after the shot was discharged at the end of the

day shift on Saturday 4/10/2010.

Exhibit S-1 is a copy of the order.

36 FMSHRC Page 2185
16. Citation No. 8107680 was issued as an S&S, unwarrantable failure

§104(d)(1) citation. It was assessed as being reasonably likely to cause a

permanently disabling injuries to 7 miners. The negligence level was

designated as high. The Citation was assessed for a total civil penalty of $23,

229 against Respondent.

17. Corey New is a licensed and certified surface blaster who has worked with

Virginia Drilling since March 2008.

18. Mr. New earned his West Virginia blasting license in 2006.

19. Mr. New was the blaster who conducted the post-blast examination at issue

at Red Fox Surface Mine on the afternoon of April 10, 2010.

20. Chad Coleman was the Virginia Drilling blaster-in-charge at the Red Fox

Surface Mine on April 10, 2010.

21. Mr. Coleman, a salaried employee, was a member of Virginia Drilling mine

management.

22. Mr. Coleman was not present when the April 10, 2010 post-blast

examination at issue occurred.

23. Mr. New has conducted post-blast examinations hundreds of times previous

to the blast at issue on April 10, 2010.

24. Mr. New had worked at Red Fox Surface Mine performing blasting services

for three to four years.

25. Exhibit S-2 is a copy of map of the blast site that Corey New drew at his

August 21, 2012 deposition of the post-blast examination site at issue. The X

on the berm marks the location that Mr. New identified as the place that he

stood when he conducted the post-blast examination.

26. The shot configuration at issue was two separate non-electric shots, a short

hole shot and a deep hole shot, tied together by surface cap delays.

27. All of the blasts contained in the short hole shot detonated.

28. Based upon the visual observation from the location on the berm designated

on Exhibit S-2, Mr. New concluded that all of the holes in the blasting

pattern had detonated.

36 FMSHRC Page 2186
29. Red Fox Surface Mine Superintendent Kirby Bragg informed Mr. Coleman

of the discovery of the undetonated blasts on the morning of April 12, 2010.

30. Virginia Drilling Safety Director Anthony Kidd was not present at Red Fox

Surface Mine on either April 10 or April 12, 2010.

31. Virginia Drilling Vice President Kester “Red” Kennedy was not present at

Red Fox Surface Mine on April 10, April 12 or April 14 of 2010.

32. Exhibit S-3 are the notes of Inspector John Stone taken on April 14, 2010 at

the Red Fox Surface Mine. These notes pertain to the issuance of Citation

No. 8107680. The parties agree that there are no authenticity issues with

regard to these notes, although Respondent does not agree to the veracity of

any statements made by Inspector Stone in the notes.

33. Exhibit S-4 is the April 10, 2010 blasting log completed by Virginia Drilling

employee, Corey New, for the shot at issue in this case.

34. Exhibit S-5 is MSHA’s Assessed Violation History Report, R-17 report,

accurately sets forth the history of violations by Virginia Drilling for the

time period specified. Such history of violations may be used to calculate

penalty assessment amounts for the citations at issue.

(Sec’y Proposed Stip. 1-3; Parties Second Set of Stip. 1)

Findings and Discussion

On April 14, 2010, MSHA Inspector John Stone issued Citation No. 8107680 as a result of

an investigation at the Red Fox Surface Mine, stemming from reports of undetonated explosives.

Upon investigation, approximately 10 to 12 undetonated explosives were discovered by a mine

employee nearly two days after the original blast occurred. Citation No. 8107680 noted a

violation of 30 C.F.R. §77.1303(pp) and the Secretary of Labor assessed a penalty of $23,229

and determined the violation to be significant and substantial and an unwarrantable failure.

Citation No. 8107680

 After receiving a report from an employee at the Red Fox Surface mine of a potential Mine

Act violation, Inspector Stone arrived at the mine site on April 14, 2010. Inspector Stone

conducted an investigation, interviewed several individuals, and issued a the citation alleging a

violation of 30 C.F.R. §77.1303(pp). The citation states:

A cutoff shot was discovered on Monday 4/12/2010 at the 9 seam put in which 12 holes did

not shoot. An adequate inspection of this blast area was not performed by the blaster after

the shot was discharged at the end of the day shift on Saturday 4/10/2010.

36 FMSHRC Page 2187
1

 New stated that he did not walk the entire shot, did not see the back of the wholes and

could not see the area that was shot so he couldn’t make a determination that the holes did not

discharge. (Tr.51:16-21)

Inspector Stone also determined that the violation was significant and substantial and an

unwarrantable failure.

(Ex. S-1)

Inspector Stone determined that as a result of this violation a permanently disabling injury

was reasonably likely to occur, the violation was significant and substantial (“S&S”), 7 persons

would be affected, and the violation was the result of high negligence on the part of the operator.

(Ex. S-1) The Secretary assessed a civil penalty of $23, 229.00. (Pet. Assessm’t. Civ. Pen. Ex.

“A”)

The Violation

Citation No. 8107680 was issued under 30 C.F.R. § 77.1303(pp), which states: 

Blasted areas shall be examined for undetonated explosives after each blast and

undetonated explosives found shall be disposed of safely.

To prove a violation of 30 C.F.R. §77.1303(pp), the Secretary must show that there was no

examination, or that if an examination was performed, it was not adequate. Sec’y of Labor v. Star

Fire Mining, 21 FMSHRC 61, 63 (Jan. 1999).

Virginia Drilling Company (“VDC”) asserts that this violation should be vacated because

their certified blaster, Corey New (“New”), conducted a post-blast examination to determine

whether there were any undetonated explosives, and despite the fact that he was unable to find

any misfires, he was competent and acted in accordance with every protocol. (Tr.25:18-23) 

VDC argues that New’s visual observation from a single vantage point was an adequate

examination. 

New testified that he could not see the entire blast area and only looked at the holes from

one vantage point. He thought he had seen everything necessary to determine that the blasts

went off successfully.1

 Larry Schneider, an experienced blaster and blasting instructor

(Tr.200:4-6; Tr.201:20-23), testified at the hearing that the best person to determine whether a

shot has gone off properly would be the blaster-in-charge. (Tr.205:3-11) Schneider testified that

the visual observations of the blaster after the blast and the appearance of no apparent problems

is all that a reasonable and prudent blaster would need to do to conduct an adequate post-blast

examination. (Tr.205:12-16; Tr.211:23-212:8) Thomas Lobb, a physical scientist and expert

36 FMSHRC Page 2188
2

 Lobb was a certified blaster in West Virginia in the early 1970s. (Tr.123: 12-13) Lobb

started working at MSHA in 1997 as the explosive and blasting expert and senior physical

scientist. (Tr.123: 17-19)

3

 Lobb also testified that such a high rate of misfires would have been obvious to a

certified blaster. (Tr.149:22-150:2)

4

 In Dynatec, ALJ Manning determined that the Secretary had established that the

Respondent had not conducted an adequate examination of the raise structure. If the Respondent

had, ALJ Manning reasoned that it would have revealed the hazardous conditions that lead to the

collapse of the raise structure. As such, although the Respondent had conducted an examination

it was “not adequate to pinpoint the problems in the raise structure so that the problems could be

corrected before the miners were exposed to the hazards.” 20 FMSHRC 1058, 1088 (Sept. 1998)

(ALJ Manning).

blaster,2

 testified that a blaster can conduct a post-blast examination from one vantage point if he

can see the entire blast site. (Tr.134:8-13) However, both Lobb and Schneider testified that if

the blaster cannot see the entire blast site, it would not be possible for him to perform an

adequate post-blast examination. (Tr.134:13-15, Tr.219:12-16; Tr.219:20-22) Furthermore,

Lobb testified that it if 12 of 25 holes did not detonate it would be obvious to the blaster because

the highwall would still be intact. (Tr.148:2-7) In contrast, such misfires would not be so

obvious if there were 500 or 1000 holes and only a few of the holes did not detonate. Under that

scenario it would be reasonable for a blaster not to notice it. (Tr.149:1-22). Finally, Lobb

testified that a reasonable and prudent blaster would have noticed the misfires (Tr.147:12-18).3

The Commission has held that an adequate examination must discover hazardous

conditions. Sec’y of Labor v. Dynatec Mining Corporation, 20 FMSHRC 1058 (Sept. 1998).4

VDC maintains that it conducted an adequate blast examination on April 10, 2010, but if that

were the case, it would have discovered the 12 misfires that were so obvious to a non-certified

blaster from afar. The Federal Safety and Mine Act of 1977 is a strict liability statute. The mere

fact that the post-blast examination was done does not expiate the violation, as VDC argues,

because the examination was not done adequately. An adequate examination would have 

detected such a gross departure from the industry standard for misfires. I find that although a

post-examination was conducted, it was not adequate to discover the misfires and prevent the

hazard that was created by the violation. I conclude that VDC violated 30 C.F.R. § 77.1303

(pp) by failing to conduct an adequate post-blast examination and missing 10 -12 misfires at the

Red Fox Surface Mine.

36 FMSHRC Page 2189
Negligence

The Commission provided guidance for making the negligence determination in A. H.

Smith Stone Co., stating that 

Section 110(i) of the Mine Act requires that in assessing penalties

the Commission must consider, among other criteria, “whether the

operator was negligent.” 30 U.S.C. § 820(i). Each mandatory

standard thus carries with it an accompanying duty of care to avoid

violations of the standard, and an operator’s failure to satisfy the

appropriate duty can lead to a finding of negligence... In this type of

case, we look to such considerations as the foreseeability of the

miner’s conduct, the risks involved, and the operator’s supervising,

training, and disciplining of its employees to prevent violations of

the standard in issue. 

5 FMSHRC 13, 15 (Jan. 1983) (citations omitted). 

“Negligence is conduct, either by commission or omission, which falls below a standard of

care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R.

§ 100.3(d). “A mine operator is required [...] to take steps necessary to correct or prevent

hazardous conditions or practices.” Id. “MSHA considers mitigating circumstances which may

include, but are not limited to, actions taken by the operator to prevent or correct hazardous

conditions or practices.” Id. Reckless negligence is present when “[t]he operator displayed

conduct which exhibits the absence of the slightest degree of care.” Id. High negligence is when

“[t]he operator knew or should have known of the violative condition or practice, and there are no

mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew or should have

known of the violative condition or practice, but there are mitigating circumstances.” Id. Low

negligence is when “[t]he operator knew or should have known of the violative condition or

practice, but there are considerable mitigating circumstances.” Id. No negligence is when “[t]he

operator exercised diligence and could not have known of the violative condition or practice.” Id.

VDC argues that this violation did not result from high negligence because New acted in

accordance with industry standards. I disagree. High negligence results when the operator knew

or should have known of the violative condition or practice, and there are no mitigating

circumstances. Table X of 30 C.F.R. §100.3 New should have known not to release the blast area

because there were obvious indicators that a misfire had occurred. New stated that he was

responsible for the blast and was the blaster-in-charge of the blast. (Tr.52:1-10) Both expert

witnesses determined that the blaster-in-charge was the best person to determine if there were any

36 FMSHRC Page 2190
5

 Schneider testified on direct examination that a certified blaster-in-charge would be the

best person to determine if the blast performed as planned. (Tr.205:3-11). Lobb testified that the

blaster-in-charge is the best person on the mine site to determine the pre and post-blast

examinations. (Tr.185:15-22)

6

 New revealed to Insp. Stone that he was a certified blaster, that he did not walk the shot

and relayed that he thought that all the holes had been discharged so he did not into look in that

area where the deep holes misfired. (Tr.46:2-16)

7

 Lobb stated that a reasonable and prudent blaster would have noticed that 12 of the 48

holes did not detonate. (147:12-18) Lobb stated that if half of the blasts didn’t detonate it would

be obvious because the high wall would still be intact. (Tr.148:2-7)

8

 Mr. Bragg stated to Stone that the misfire should have been found and that anybody that

would have examined that shot would have found these conditions and noticed that the wall was

not straight. When he arrived at the mine on Monday morning, he said he was traveling down the

road and realized the wall had a curve in it and got out of his vehicle to investigate it. (Tr.51:3-

16).

misfires.5

 New also testified that he only viewed the blast area from one vantage point and

admittedly could not see the deep holes yet assumed the blast went off as expected.6 Both expert

witnesses also testified that the failure of a blaster to examine the entire blast area was not

reasonable and prudent and that such an oversight would not be considered adequate.7

 In light of

the fact that the indicators of a misfire were so obvious to a person without blasting experience,8

New should have known of the violative condition. VDC’s own expert admitted that if a lay

person could see something out of the ordinary, a blaster should have seen it as well. (Tr.223:1-6)

Given the obvious indicators of this violation, New should have known that there were

misfires when he shot the holes on April 10, 2010. Additionally, there were no mitigating factors

presented to warrant a finding of a lower degree of negligence. There is no reason to reduce the

level of negligence. I conclude that this violation resulted from high negligence .

Gravity

The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is

often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC

1541, 1549 (Sep. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983),

aff'd, 736 F.2d 1147 (7th Cir. 1984) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681

(April 1987)). The seriousness of a violation can be examined by looking at the importance of the

standard which was violated and the operator’s conduct with respect to that standard, in the

context of the Mine Act’s purpose of limiting violations and protecting the safety and health of

miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ). The

gravity analysis focuses on factors such as the likelihood of an injury, the severity of an injury,

and the number of miners potentially injured. The Commission has recognized that the likelihood

36 FMSHRC Page 2191
9

 Lobb has investigated blasts sites where workers dug into areas of undetonated holes

and were seriously hurt or killed. (Tr.150:22-151:1)

10 MSHA has recorded approximately 30 to 40 accidents related to misfires since 1978.

(Tr.158:22-59:3) 

of injury is to be made assuming continued normal mining operations without abatement of the

violation. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). 

Stone determined the gravity as reasonably likely to result in injury because there were 10 to

12 live holes, men and equipment were working within the blast area, and it was reasonably likely

that an injury would occur if the misfires detonated. (Tr.56:12-21) Lobb also indicated that he

had investigated numerous mine accidents in which misfires detonating caused injury or death.9

Stone classified the violation as permanently disabling because of the live holes and large

equipment removing the overburden in the area which could set off the explosives and expose

miners to blunt-type trauma from impact, flyrock, or even the movement of the machine itself.

(Tr.58:4-15) He determined that seven miners could be affected. He considered the nature of the

operation, how the men worked the equipment, what equipment is usually used in that type of

shot, and the fact that trucks travel in and out of the area. (Tr.58:22-59:8) There is no doubt that if

mining operations had continued without detecting and disposing of the misfires, it was at least

reasonably likely that an injury could have occurred which could seriously injure several

miners.10 Therefore, I concur that the violation was reasonably likely to cause injury. 

Significant and Substantial

In Mathies Coal Co., the Commission explained:

In order to establish that a violation of a mandatory safety standard

is significant and substantial under National Gypsum, the Secretary

of Labor must prove: (1) the underlying violation of a mandatory

safety standard; (2) a discrete safety hazard – that is, a measure of

danger to safety – contributed to by the violation; (3) a reasonable

likelihood that the hazard contributed to will result in an injury; and

(4) a reasonable likelihood that the injury in question will be of a

reasonably serious nature.

6 FMSHRC 1, 3-4 (Jan. 1984).

In U.S. Steel Mining Co., the Commission held:

We have explained further that the third element of the Mathies

formula “requires that the Secretary establish a reasonable

likelihood that the hazard contributed to will result in an event in

which there is an injury.” [ . . .] We have emphasized that, in

36 FMSHRC Page 2192
11 Lobb stated that the blaster should have looked at the holes from multiple directions to

determine that there were no undetonated blasts. (Tr.157:18-22)

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.”

7 FMSHRC at 1129 (emphasis in original) (citations omitted). 

The question of whether a particular violation is significant and substantial must be based on

the particular facts surrounding the violation. See Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988);

see also Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). S&S enhanced

enforcement is applicable only to violations of mandatory health and safety standards. Cyprus

Emerald Res. Corp. v. FMSHRC, 195 F.3d 42, 45 (D.C. Cir. 1999). 

The underlying violation here is the failure of VDC to conduct an adequate post-blast

examination, which gave rise to a discrete safety hazard, i.e., that undetonated explosives were

left in an area that was cleared for miners to resume work. As discussed above, there is

reasonable likelihood of permanently disabling injury resulting from this violation. A discussion

of the severity of the injury that would result from this violation follows.

On April 10, 2010, New detonated holes at the Red Fox Surface Mine. (Tr.20:19-23) After

conducting a visual post-blast examination from the berm (Tr.310:6-14),11 New sounded the all

clear for the miners to resume work. (Tr.311:20-21) Between Saturday, April 10, 2010, and

Sunday, April 11, 2010, mining crews operated heavy equipment to remove the shot rubble.

(Tr.21:7-11) Approximately 12 misfired shots were discovered on Monday, April 12, 2010, by

Red Fox Mine employee Kirby Bragg. (Tr.59:9-60:5) New learned of the misfires on April 12,

2010. (Tr.312:21 - 313:1) On April 14, 2010, Stone learned of the violations and issued VDC

Citation No. 8107680 for violation of 30 C.F.R. § 77.1303(pp). (Tr.55:17-56:11) VDC failed to

conduct an adequate post-blast examination to discover undetonated blasting material. 

Lobb testified that the undetonated blasts are dangerous to miners (Tr.158:19-22) and that

ordinary mining operations, such as drilling and digging with mining equipment or running over

rocks close to undetonated blasts, could cause them to explode. (Tr.159:7-15) Lobb also testified

that the Bureau of Mines has determined that only 15 pounds of pressure on detonators can cause

them to explode. (Tr.141:13-16) Stone testified that the CAT front end loader was removing

overburden from the lower level of the blast site, and rock trucks were loading the rocks and

depositing the rocks in other areas of the job. (Tr.43:1-15) The CAT loader weighs

approximately 200 tons. (Tr.42:10-23) Lobb testified that he had investigated numerous misfire

36 FMSHRC Page 2193
12 Lobb also noted that he has investigated blasts sites where workers dug into areas of

undetonated holes and were seriously hurt or killed. (Tr.150:22-151:1)

13 Lobb testified that flyrock can travel over 2,000 feet (Tr.164:16-17) and that it doesn’t

need to be large o kill someone. (Tr.164:10-11)

accidents and noted that injury from undetonated holes could be fatal.12 Lobb also testified that

even if the blast does not injure anyone in the immediate vicinity, flyrock from the blast could.13

 If only 15 pounds of pressure is needed to detonate misfires, a 200 ton machine is certainly

capable of detonating the misfired shots in this case. If the misfires had detonated, it would have

potentially killed or severely disabled miners in the blast area and up to 2,000 feet away from the

blast area. Therefore, the Secretary has met his burden of proving the Mathies elements. The

result of this violation was that undetonated blasts were undiscovered until several days and

several shifts later. If the misfired blasts had been detonated by the miners resuming work in the

area cleared by VDC’s certified blaster, there would be a reasonable likelihood that the blasts

would cause injury to the miners and that the injury would be permanently disabling. For these

reasons, the violation was appropriately classified as significant and substantial. 

Unwarrantable Failure

The term “unwarrantable failure” comes from section 104(d) of the Act. 30 U.S.C. 814(d)

(2012). Taken together with “significant and substantial,” it creates a standard for enhanced

enforcement procedures, including withdrawal orders and potential enhanced liability. 

In Emery Mining Corp., the Commission determined that the essence of unwarrantable

failure is aggravated conduct constituting more than ordinary negligence. 9 FMSHRC 1997,

2001 (Dec. 1987). Unwarrantable failure has been paraphrased as “reckless disregard,”

“intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003–04; 

Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991). See also Buck Creek Coal

Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable

failure test). In Gatliff Coal Co., the Commission drew a clear contrast between negligence and

unwarrantable failure, noting that the difference is not merely semantic. 14 FMSHRC 1982 (Dec.

1992). Consistent with the discussion of enhanced enforcement above, the Commission stated

that an unwarrantable failure may trigger the “increasingly severe enforcement sanctions of

section 104(d)” whereas “[n]egligence [. . .] is one of the criteria that the Secretary and the

Commission must consider in proposing and assessing [. . .] [all] civil penalt[ies].” Id. at 1988

(quoting E. Assoc’d Coal Corp., 13 FMSHRC 178, 186 (Feb. 1991)). Further, “‘[h]ighly

negligent’ conduct involves more than ordinary negligence and would appear, on its face, to

suggest an unwarrantable failure. Thus, if an operator has acted in a highly negligent manner

with respect to a violation, that suggests an aggravated lack of care that is more than ordinary

negligence.” Gatliff Coal, 14 FMSHRC at 1989 (quoting E. Assoc’d Coal, 13 FMSHRC at 186).

The Commission has examined various factors to assist in determining whether a violation is

unwarrantable, including the extent of a violative condition, the length of time it has existed,

36 FMSHRC Page 2194
14 New stated that he did not walk the entire shot. He did not see the back of the holes

and could not see that area that was shot, so he could not make a determination that the holes did

not discharge. (Tr.51:16-21) New told Stone that he was a certified blaster; he did not walk the

shot; and he thought that all the holes had been discharged, so he did not into look in the area

where the deep holes misfired. (Tr.46:2-16) 

15 Usually a blaster can conduct his post-blast examination from a single vantage point if

he is able to see the entire blast site. (Tr.134:8-13) However, if a blaster cannot see the entire

blast site, he cannot perform an adequate post-blast examination. (Tr 134:13-15) 

16 The condition of the holes was obvious and extensive, had existed since April, 4, 2010,

at 3:30 pm, but was not discovered until Monday, April 4, 2010, by Kirby and Bragg. (Tr.59:9-

60:1-5) New determined that the shots detonated and cleared the blast area. (Tr.13-21) New

learned of undetonated holes on Monday, April 4, 2010. (Tr.312:21-313:1) The CAT front end

loader was removing overburden from the lower level of the blast site and rock trucks are

loading the rocks and depositing the rocks in other areas of the job. (Tr.43:1-15)

whether the violation is obvious or poses a high degree of danger, whether the operator has been

placed on notice that greater efforts are necessary for compliance, and the operator’s efforts in

abating the violative condition. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); 

Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC

705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984); Bethenergy

Mines, Inc., 14 FMSHRC 1232, 1243–44 (Aug. 1992); Warren Steen Constr., Inc., 14 FMSHRC

1125, 1129 (July 1992). The Commission has also considered an operator’s knowledge of the

existence of the dangerous condition. See, e.g., Cyprus Plateau Mining Corp., 16 FMSHRC

1604, 1608 (Aug.1994) (affirming unwarrantable failure determination where operator was aware

of a brake malfunction failed to remedy the problem); Warren Steen, 14 FMSHRC at 1126–27;

1129 (knowledge of a hazard and failure to take adequate precautionary measures support

unwarrantable determination). See also Consolidation Coal Co., 23 FMSHRC 588, 593 (June

2001). What is apparent from the foregoing list of factors is that they are fact-specific examples

of conduct and circumstances tending to show unwarrantable failure as something more than

ordinary negligence. They are suggestions only and are not intended to be an exhaustive or

exclusive catalog. The essential aspect of the unwarrantable failure analysis is whether there is

aggravated conduct constituting more than ordinary negligence. Any analysis of unwarrantable

failure must identify the evidence or factors that prove aggravated conduct and discuss them

thoroughly. IO Coal Company, Inc., 31 FMSHRC 1346, 1350–51 (Dec. 2009).

New could not see into the deep holes to see if shots had discharged. He assumed

everything went off and made no attempt to look at the blast area from another perspective, even

though he could not see the entire blast area.14 Thomas Lobb and Larry Schneider testified that it

is customary for a blaster to view the area from different perspectives if everything cannot be

viewed from one perspective.15 The misfires were left undetected from April 10, 2010 to April 12,

2010, during which time miners had resumed work in the blast area.16 The danger posed to the

36 FMSHRC Page 2195
17 Lobb testified that undetonated blasts are dangerous to miners. (Tr.158:19-22)

18 New has been certified blasted in West Virginia for about six years. (Tr.305:13-15)

19 Stone assessed the violation as unwarrantable failure because: (1) the operator

exhibited less care than should be expected; (2) the violating conditions were extensive, namely

two rows of holes were visible to Kirby from the road; (3) a resulting injury could be very

serious; and (4) the condition existed for an extended period. (Tr.60:6-19)

miners resuming work was severe, in that it could result in severe injury or death.17 Given his

years as a blaster,18 New should have been able to see the misfires or at least the indicators of a

misfire. New’s premature clearance of the blast area and failure to notice any indicators of a

misfire is particularly serious because the indicators of a misfire were so obvious to Bragg, who

though not employed in the blasting industry, was able to see that there was something amiss

from a casual look at the blast area.19 It is significant that VDC’s expert witness admitted that if a

lay person could see something out of the ordinary, a trained blaster should have seen it as well.

(Tr.223:1-6) If an adequate examination had been done on April 10, 2010, it would have revealed

the numerous misfires. 

I am persuaded by the testimony of Lobb, Schneider, and Stone that if the entire blast area

could not be viewed, the proper protocol would be to view the blast area from various vantage

points. New’s failure to conduct an adequate post-blast examination, and the conspicuous nature

of the violation to individuals outside of the blasting industry, demonstrate a serious lack of

reasonable care in the manner in which New conducted the post-blast examination. More

troubling than New’s failure to discover the misfires through his own examination is the fact that

the violation went undiscovered for several days, and this violation would have persisted if it had

not been discovered by Bragg. Based on this evidence, I conclude that New demonstrated a

serious lack of care in conducting his post-blast examination amounting to an unwarrantable

failure to comply with the standard. 

Penalty

The principles governing the authority of Commission administrative law judges to assess

civil penalties de novo for violations of the Mine Act are well established. Section 110(i) of the

Mine Act delegates to the Commission and its judges the “authority to assess all civil penalties

provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to

the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it

intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29

C.F.R. § 2700.28. The Act requires, that in assessing civil monetary penalties, the Commission

[ALJ] shall consider the six statutory penalty criteria:

[1] the operator’s history of previous violations, [2] the

appropriateness of such penalty to the size of the business of the

operator charged, [3] whether the operator was negligent, [4] the

36 FMSHRC Page 2196
effect on the operator’s ability to continue in business, [5] the

gravity of the violation, and [6] the demonstrated good faith of the

person charged in attempting to achieve rapid compliance after

notification of a violation. 

30 U.S.C. § 820(i). 

Applying the 30 C.F.R. § 100.3 penalty calculation to the findings and conclusions above,

the penalty recommended by the matrix is $23, 229.00. I accept the Secretary’s evidence regarding

the mine size, the size of the controlling entity, the ratio of violations per day, the number of

persons involved, and the severity of a potential event. I concur with the Secretary’s assessment of

this violation as significant and substantial, reasonably likely to result in permanently disabling

injury and high negligence which amounts to unwarrantable failure. After considering all of the

penalty criteria, I assess a penalty of $23, 229.00 for this citation. I apply the percentage point

reduction for good faith abatement to come to that figure.

ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C.§ 820(i), I assess a total 

penalty of $23, 229.00. Virginia Drilling Company is hereby ORDERED to pay the Secretary of 

Labor the sum of $23,229.00 within 30 days of the date of this decision.

/s/ L. Zane Gill

L. Zane Gill

Administrative Law Judge

Distribution: (Electronic Mail and Certified Reciept Return)

Virginia Fritchey, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson

Boulevard, 22nd Floor West, Arlington, VA 22209-2247

Gene W. Bailey, II, Esq., Hendrickson & Long, PLLC, 214 Capitol Street, Charleston, WV 25301

36 FMSHRC Page 2197
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, D.C. 20004-1710 

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

August 15, 2014 

 THOMAS E. PEREZ, Secretary of Labor, : CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH : 

 ADMINISTRATION (MSHA), : 

 : DOCKET NO. VA 2014-95 

 Petitioner, : 

 : A.C. NO. 44-07159-338294 

 v. : 

 : 

BRISTOL COAL CORP., : MINE: MINE #9 

 : 

DECISION APPROVING SETTLEMENT

Before: Judge Moran 

This case is before the court upon a petition for the assessment of civil penalties under 

Section 105(d: of the Federal Mine Safety and Health Act of 1977. The parties have filed a 

Joint Motion to Approve Settlement. The Secretary’s Motion advises that “[i]n reaching this 

settlement, the Secretary has evaluated the value of the compromise, the likelihood of obtaining 

a still better settlement, the prospects of coming out better, or worse, after a full trial, and the 

resources that would need to be expended in the attempt [sic]. The Secretary has determined 

that the public interest and the effective enforcement and deterrent purposes of the Mine Act are 

best served by settling the citations as indicated above. . . . Consistent with the position the 

Secretary has taken before the Commission in The American Coal Company, LAKE 2011-13, 

the Secretary believes that the pleadings in this case and the above summary give the 

Commission an adequate basis for exercising its authority to review and approve the parties’ 

settlement under Section 110(k: of the Mine Act, 30 U.S.C. § 820(k:.” Joint Motion at 2. 

The Court notes that in its brief before the Commission upon interlocutory review, 

challenging the rejection of its proposed settlement in Sec. of Labor v. The American Coal 

Company, LAKE 2011-13 (“American Coal”: and in its underlying submission to this Court in 

that case, the Secretary repeatedly invoked the claim that its approach for settlement 

submissions promotes transparency and satisfies the need for public scrutiny, objectives to 

which it professedly subscribes. See, for e.g. Sec’s Brief in American Coal at 43. 

The Secretary, in this Court’s view, has not caught on to the trend that began in the late 

twentieth century that more, not less, public information from government is the preferred 

practice. As the dictionary explains, to be “transparent” means to be “easily detected . . . 

characterized by visibility or accessibility of information especially concerning business 

practices.” Merriam-Webster.com. Instead, in its Motion before this Court in American Coal, 

36 FMSHRC Page 2198
the Secretary merely proclaimed, in a decidedly non-transparent manner that “[a]fter further 

review of the evidence, the Secretary has determined that a reduced penalty is appropriate in 

light of the parties’ interest in settling this matter amicably without further litigation. In 

recognition of the nature of the citations at issue, and the uncertainties of litigation, the parties 

wish to settle the matter with a 30% reduction in the assessed penalty with no changes to gravity 

or negligence for any of the citations at issue.” See, American Coal Motion at 2-3. In the 

Court’s view, such an approach is at odds with the normal sense of the meaning of transparency 

and, importantly, makes public scrutiny impossible. Further, the Secretary exaggerates, and 

some might fairly state outright misrepresents, what is required for a settlement to pass muster, 

by asserting that the Commission’s approach requires “the Secretary to supply extensive

information to justify proposed settlements.”1 See, Sec’s Br. at 5, presently before the 

Commission under interlocutory review in American Coal. 

The Present Motion in Bristol Coal Corporation 

In its Bristol Coal Corp. Motion, the Secretary relates that the Respondent agrees 

to pay the penalty proposed by the Secretary for the violations alleged in the following citations: 

Citation Number Penalty

8208907 $100

8208908 $100

8208910 $100

8208911 $100

8208912 $100

8208913 $100

8208914 $263

8208918 $224

8208920 $392

8208921 $392

8208922 $392

8208923 $100

8208924 $100

8208925 $285

8208926 $100

8208928 $224

8208930 $100

8208932 $100

8208933 $224

1

 The Secretary continues this theme of exaggeration by remarking that “settlement is an 

indispensable part of a well-functioning enforcement and adjudicatory regime,” as if anyone takes issue 

with that view. See, Sec’s Br. at 7, presently before the Commission under interlocutory review in 

American Coal. 

36 FMSHRC Page 2199
Recalling its protest, as noted above, that “[i]n reaching this settlement, the Secretary has 

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

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

expended in the attempt [and that] [t]he Secretary has determined that the public interest and the 

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

citations as indicated above [and that] [c]onsistent with the position the Secretary has taken 

before the Commission in The American Coal Company, LAKE 2011-13, the Secretary believes 

that the pleadings in this case and the above summary give the Commission an adequate basis for 

exercising its authority to review and approve the parties’ settlement under Section 110(k: of the 

Mine Act, 30 U.S.C. § 820(k:,” it is fair to inquire in the representative example provided by the 

motion in this matter, involving Bristol Coal Corporation, just exactly what is the extensive 

information the Secretary must supply to justify its proposed settlement here? 

The answer need not be speculative because the Secretary has grudgingly provided the 

required information but only in the alternative to its completely unenlightening first line 

position: 

“The bases for the settlement of the remaining citations at issue in this docket, including 

the individual settlement amounts, are set forth below: 

Citation Number 8208909 75.380(d:(7:(viii: 

Basis of Compromise: Negligence and Number Affected. 

At hearing, Respondent would present evidence that the condition had not existed 

at the time of the preshift exam. Further, the condition was not noted in the books 

therefore had likely just occurred. Hence, the negligence is overstated. Further, 

the Respondent alleges that nine miners would not be affected. Respondent asserts 

that the number affected should be modified to no more than four or five. 

Therefore, Respondent would argue that the citation should be modified to “low 

negligence” with four affected and the penalty should be reduced. 

The Secretary, in reply to Respondent’s statements and contentions, states that he 

recognizes that they raise factual and legal issues which can only be resolved by a 

hearing before the Commission or by the parties reaching a compromise of the 

penalty proposed by the Secretary or by a modification of the characterization of 

the citation to reflect a lower level of gravity or negligence or both. The Secretary 

agrees to accept a reduced penalty. 

Amount of the penalty proposed by the Secretary: $1,304. 

Amount of the penalty agreed on by the parties: $472. 

36 FMSHRC Page 2200
Citation Number 8208934 75.333(b:(3: 

Basis of Compromise: Negligence and Number Affected. 

At hearing, Respondent would present evidence that the stopping had been 

knocked out accidently by a piece of equipment but the condition had not existed 

very long. Further, the inspector does not know how long the condition existed 

and cannot say for certain that it had been busted for a week. Finally, if a fire did 

occur, it would not affect nine miners.. Therefore, Respondent would argue that 

the citation should be modified to “low negligence,” two affected and the penalty 

should be reduced. 

The Secretary, in reply to Respondent’s statements and contentions, states that he 

recognizes that they raise factual and legal issues which can only be resolved by a 

hearing before the Commission or by the parties reaching a compromise of the 

penalty proposed by the Secretary or by a modification of the characterization of 

the citation to reflect a lower level of gravity or negligence or both. The Secretary 

agrees to accept a reduced penalty. 

Amount of the penalty proposed by the Secretary: $1,304. 

Amount of the penalty agreed on by the parties: $472.” 

The Court finds this information adequate to explain the basis for the proposed reduction 

and consequently that it meets the statutorily mandated requirement for the Commission to 

approve the motion under Section 110(k: of the Mine Act. Accordingly, by its own Motion, the 

Secretary has demonstrated the ease with which sufficient, and certainly not extensive, 

information can be provided in its motions, belying its claims to the contrary. It is important to 

note that, simple as it is to provide the information necessary for a settlement approval, by 

putting that information in the motion, the Secretary is then on record as to the explicit basis for 

the reduction and in the unlikely event that the representations were untrue, the record of the 

basis would be there for accountability. In contrast, the Secretary’s initial posture, absent of 

transparency as to the basis, would not provide a basis for a post hoc review of the legitimacy of 

the settlement, because it gives no useable information for such a review. 

36 FMSHRC Page 2201
 Accordingly, based on the above discussion and the representations in the Motion, the 

Court, having considered the representations and documentation submitted in these cases, 

concludes that the proffered settlement is appropriate under the criteria set forth in Section 110(i: 

of the Act. The settlement amount is as follows: 

 

Citation Number Assessment Settlement Amount

8208097 $100 $100

8208908 $100 $100 

8208909 $1,304 $472 

8208910 $100 $100 

8208911 $100 $100 

8208912 $100 $100 

8208913 $100 $100 

8208914 $263 $263 

8208918 $224 $224 

8208920 $392 $392 

8208921 $392 $392 

8208922 $392 $392 

8208923 $100 $100 

8208924 $100 $100 

8208925 $285 $285 

8208926 $100 $100 

8208928 $224 $224 

8208930 $100 $100 

8208932 $100 $100 

8208933 $224 $224 

8208934 $1,304 $472 

TOTAL $5,919 $4,440 

 

 

 It is further ORDERED that the operator pay a penalty amount of $4,440 in thirty days. 

Upon receipt of the payment, this case will be DISMISSED. 

 

/s/ William Moran

 William Moran 

 Administrative Law Judge 

 

36 FMSHRC Page 2202
Distribution: 

C. Renita Hollins, Attorney, United States Department of Labor, Office of the Solicitor, 211 7th

Avenue North, Suite 420, Nashville, TN 37219 

Hank Matney, President, Bristol Coal Corporation, P.O. Box 1426, Grundy, VA 24614 

36 FMSHRC Page 2203
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-928-8689 

August 19, 2014 

DECISION

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

Nashville, Tennessee, on behalf of the Secretary of Labor 

Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, Charleston, West 

Virginia, on behalf of Contestant Cam Mining, LLC 

Before: Judge Andrews

STATEMENT OF THE CASE 

These contest proceedings are pursuant to the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (2000) (the “Mine Act” or “Act”). A hearing was held on an 

expedited basis in Pikeville, Kentucky on January 10, 2013, at which the parties presented 

testimony and documentary evidence. This matter concerns Citation No. 8273702 and Order No. 

CAM MINING, LLC, 

 Petitioner 

v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent 

 CONTEST PROCEEDINGS 

Docket No. KENT 2013-196-R 

Citation No. 8273702; 10/17/2012 

Docket No. KENT 2013-197-R 

Order No. 8273703; 10/17/2012 

Mine ID: 15-18911 

Mine: No. 28 

36 FMSHRC Page 2204

:

:

:

:

:

:

:

:

:

:
8273703 both issued on October 17, 2012 under Section 104(d)(1) of the Act. After the hearing, 

Post Hearing Briefs and Reply Briefs were submitted.1

 The issue presented is whether the 

citation and order were validly issued 

JOINT STIPULATIONS 

The parties agreed to the following stipulations at the hearing: 

1. Cam Mining, LLC is subject to the Federal Mine Safety and Health Act of 1977, as

amended (“the Mine Act”).

2. At all relevant times, Cam Mining, LLC and the mine, No. 28, mined and produced coal

which entered Commerce, or had operations or products which affected commerce,

within the meaning of the Mine Act.

3. Cam Mining, LLC is subject to the jurisdiction of the Federal Mine Safety and Health

Review Commission and the administrative law judge has the authority to hear the case

and issue a decision.

4. At all relevant times, Cam Mining, LLC was an “operator,” as defined in the Mine Act, at

the mine No. 28, when the citations at issue in this proceeding were issued.

5. The mine, No. 28, is a “coal or other mine” within the meaning of the Mine Act.

6. Cam Mining, LLC is a large operator, and imposition of a reasonable penalty will not

affect the ability of Cam Mining, LLC to remain in business.

7. Each of the citations at issue in this proceeding was properly served by a duly authorized

representative of the Secretary of Labor, Mine Safety and Health Administration, upon an

agent of Cam Mining, LLC.

DEFINITIONS AND PRELIMINARY MATTERS: 

The Citation and Order in the instant case were issued during retreat mining. Retreat 

mining consists of a “pillaring” process where the coal pillars that are left for roof support after 

advance mining are later mined as the miners and machinery “retreat” back out of the mine. See, 

1

 I have fully considered the contents of the Official File including the pre- and post-hearing

submissions of the parties, and the exhibits admitted into evidence. The findings of fact are based on the 

record as a whole and my careful observation of the witnesses during their testimony. In resolving any 

conflicts in the testimony, I have taken into consideration the interests of the witnesses, or lack thereof, 

and consistencies, or inconsistencies, in each witness’s testimony and between the testimonies of the 

witnesses. In evaluating the testimony of each witness, I have also relied on his demeanor. Any failure to 

provide detail as to each witness’s testimony is not to be deemed a failure on my part to have fully 

considered it. The fact that some evidence is not discussed does not indicate that it was not considered. 

See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)(administrative law judge is not required to discuss 

all evidence and failure to cite specific evidence does not mean it was not considered). 

36 FMSHRC Page 2205
Excel Mining v. Secretary of Labor, 34 FMSHRC 99, 102. When retreat mining, the coal is 

taken out of these large pillars or blocks according to a specific sequence and to dimensions 

prescribed in the approved Roof Control Plan (“RCP”). Id.

To avoid confusion, it is necessary to assign a common meaning to different terms used 

by witnesses to describe the same or similar things. Therefore, in this decision the following 

terms will be used: 

Pillar - this will describe the large 60 foot long by 50 foot wide blocks of coal left 

for roof support as mining advances into a coal seam. “Pillar” and “block” share 

the same meaning and both will be used in this decision. 

Cuts - this term will describe the 12-foot wide parts of the pillar or block of coal 

that are mined or cut out. Exhibit Rx-E. Witnesses also used the terms “sumps” 

and “lifts” and these have the same meaning, but “cut” will be substituted in this 

decision. 

Stump - this will describe the material left at the outby corners of each pillar or 

large block of coal after all cuts have been taken out of the pillar. This stump 

extends from the floor to the roof of the mine. Witnesses also referred to this as a 

corner. The RCP refers to that part of a pillar not to be mined as the “stump” and 

also as the “outby corner”. Exhibit Gx-3, Rx-E. Where witnesses referred to the 

remaining material as a pillar, the term “stump” will be substituted. 

Web - also referred to as a wedge, this is the 3-foot column of coal left between 

the 12-foot cuts into a pillar. See Exhibit Rx-E, where two of these webs are 

labeled on each side of the mined pillars. 

Row - also referred to as a line, this is the entire horizontal row of pillars in the 

section being mined. On Exhibit Rx-G, a row of pillars would consist of all of the 

pillars or large blocks of coal from the red “L” on the left in a straight horizontal 

line to the red “Bs” on the right. Row and line will share the same meaning in 

this decision. 

Breakers - the timber posts set in each entry along the breaker line of the pillars 

or blocks being retreat mined. A breaker line may be visualized on Exhibit Rx-G 

as extending along the inby edge of a line of pillars or blocks where the letters 

“CL” have been placed in blue ink in each of the squares representing a pillar. 

At the outset of the hearing, the Secretary objected to so much of Contestant’s Exhibit 

Rx-G that depicts the pillars or blocks of coal with 2 cuts taken in each as not being an accurate 

illustration of the actual number of cuts being taken. The Exhibit was admitted, but on study of 

the entire record I find that the objection as it pertains narrowly to the number of cuts per block 

of coal should have been sustained. As will be discussed in greater detail in this decision, 

credible testimony and simple calculations reveal that the illustration of pillars with two cuts is 

36 FMSHRC Page 2206
misleading, inaccurate and self-serving, and therefore this part of the exhibit is found to have 

little probative value. 

 However, Exhibit Rx-G was useful for other purposes and extensively marked up during 

the hearing to show the location of entries, pillars, stumps, timber posts, check curtains, breaker 

lines and persons in the area. For these purposes only, and to help understand testimony, the 

Exhibit will be referred to frequently in this decision. 

CITATION NO. 8273702

EVIDENCE 

On October 17, 2012, at 1020 hours MSHA Inspector Carl Keith Little (“Inspector Little” 

or “Little”) issued this citation with the following Condition or Practice: 

The approved roof control plan, dated 4-15-2011, is not being complied with on 

the 001-0/003-0 super section. Pages 24-26 of the approved plan require a 

minimum of 6 foot of the coal pillar to the left on each side of the entries at the 

outby corners of the coal pillars during retreat mining. The size of the coal pillars 

left on each side of the entries 1 thru 7 range in size from 1 foot to 5 feet with 

none of the stumps not mined being large enough to meet the minimum 

requirement of 6 feet. This violation is an unwarrantable failure by the operator to 

comply with a mandatory standard. 

Standard 75.220(a)(1) was cited 15 times in two years at mine 1518911 (15 to the 

operator, 0 to the contractor). This violation is an unwarrantable. 

After training on retreat mining the Citation was terminated at 1235 hours. 

Gx-1.2

The cited regulation provides: 

(a)(1) Each mine operator shall develop and follow a roof control plan, approved 

by the District Manager, that is suitable to the prevailing geological conditions, 

and the mining system to be used at the mine. Additional measures shall be taken 

to protect persons if unusual hazards are encountered. 

30 C.F.R. § 75.220 

 A revised Roof Control Plan for Cam Mine #28 was submitted to MSHA on April 12, 

2011 and approved on April 15, 2011. This approved plan was in effect on October 17, 2012. A 

 2

 Hereinafter, Government exhibits will be referred to as “Gx” followed by a number. 

Contestant’s exhibits will be referred to as “Rx” followed by a letter. Citations to the transcript will be 

labeled “Tr.” followed by the page number(s). 

36 FMSHRC Page 2207
substantial portion of the mine’s plan covers safety precautions for retreat mining. Gx-3, pp.20-

26. Pages 24, 25 and 26 are illustrations of the extraction plan showing the sequence, placement 

and dimensions of the cuts that may be taken in each 60-foot long by 50-foot wide pillar or block 

of coal. Also shown and explained are the minimum dimensions of the coal webs left in the 

block and the stumps left at the outby corners of each block. The minimum requirement for the 

stumps is to leave 6 feet at each corner. Gx-3, P. 24. 

 Inspector Little traveled to Mine No. 28 on October 17, 2012 arriving at about 8:00 am 

for a continuing EO1 inspection. Tr. 257, Gx-5, pp 1, 2. Little is a ventilation specialist for 

MSHA, having worked for MSHA for almost 8 years. Tr. 253. He has 40 years of underground 

mining experience, most of which as a Section Foreman, and has experience with retreat or pillar 

mining.3

 Tr. 254. 

 Inspector Little informed Foreman Jody Heath Baldwin (“Foreman Baldwin” or 

“Baldwin”) of the inspection, checked the mine maps, and decided to go the 001-0/003-0 area, 

where they were retreat mining. Accompanied by Baldwin, they arrived at about 10-10:15 am. 

Tr. 257, 258; Gx-5. 

 Inspector Little testified that mines engaging in retreat mining are visited at least once a 

month to make sure they are complying with their pillar plan.4

 Tr. 253-255. Little described the 

process of observing the conditions in the line of blocks that had already been retreat mined as 

going to the breakers of the blocks being actively mined and looking inby at the stumps to see 

the size of the stumps that had been left. Little testified that to comply with the plan the outby 

stump has to be a minimum of 6 feet from the corner of the block back to where cutting into the 

block started.5 Tr. 255, 256. Little also testified to make sure there is compliance with the 

mine’s plan, an area they have mined is observed, and then the active mining cycle is observed. 

Tr. 328. 

 Inspector Little has at least 6 years of experience judging stump size. Tr. 263. He pointed 

out that there is a considerable difference between a 3 foot and 6 foot stump, and that it is easy to 

observe the size of a stump from twenty feet while standing in the breaker timbers. Tr. 264, 275, 

297. He could also see the lines where the miner head had cut into the entries6

and not left the 

right size stumps Tr. 307. He further testified that when a cut is finished, you can see if the 6 

foot is left. Tr. 317. 

 

 3 See Employment History at Gx-6. 

4

 References to the “pillar plan” are to pages 24-26 of the mine’s roof control plan containing the 

specifications for the coal to be left for roof support. 

5 See Exhibit Rx-E (illustrating the outby corners of the pillars and the 12 foot wide cuts into each 

side of the pillars). 

6

 The continuous miner cuts into the pillar or block of coal from the entry. According to the 

mine’s Roof Control Plan, each of these cuts should be 12 feet wide and the depth is limited to 35 feet. 

See exhibit Rx-E for an illustration of a row or line of mined-out pillars of coal. 

36 FMSHRC Page 2208
 Beginning at the No. 1 entry7

 to start the imminent danger check, Inspector Little 

observed from the breakers that the left side of the block just inby had not been mined. Tr. 36, 

259, 260. Little explained that an imminent danger check is a requirement of all E01 inspections 

and consists of when an inspector goes to the section, looks at all the faces, and the pillar line, 

etc. to ensure there is nothing going on to cause an injury or fatality before it can be corrected. 

Tr. 259. When he begins the imminent danger check, he goes to one of the outside entries. Tr. 

255. As he starts across the entries, he goes back to the breakers of the blocks that are being 

minded. Id. He then takes the curtain hung in front of the timbers and goes inby the curtain to 

observe the conditions that they had mined in the line of blocks before. Id. Based on the pillar 

plan the outby stump has to be a minimum of 6 feet from the corner of the pillar to where they 

start cutting. Tr. 256. Little testified that an inspector must also check all the breaker timbers and 

ensure they are set on 4-foot centers and do not exceed 4 feet from the coal ribs. Id. He further 

testified that the timber placement and the size of the stumps that are left are part of the 

inspection to ensure compliance with the pillar plan. Id.

 At the number 2 entry, observing from the breakers, Inspector Little found that the left 

stump was approximately 2 feet wide back from the rib line,8

 and the right stump lacked about 

16-18 inches where a cut had been taken clipping off the inby side of that stump. Tr. 260-262. 

Little went on into each entry, from number 3 to number 7, again observing from the breaker 

line, and recording the stump dimensions in his notes. Gx-5, pp. 4, 5. 

 When moving across the section, at the middle entry, mining was halted outby by 

Foreman Baldwin until the inspection was finished. Tr. 266. While in the active section, he and 

Baldwin walked by the number 4 entry right at the intersection in front of the one block being 

mined that day, and the stumps there were not adequate either. He did not need to use his tape 

measure; he could see they were not big enough. Tr. 280, 281, 294, 295. Inspector Little had 

already told Baldwin that a citation for not complying with the pillar plan would be issued, and 

he also told Baldwin that if the conditions continued across the section, it would be a (d)(1) and 

he would need to stop mining and pull back leaving a row of blocks because roof support had 

been compromised. Tr. 260, 323, 324. 

 Inspector Little testified that the minimum 6-foot stumps required at the front of all of the 

blocks were not left. Tr. 269, 305. The largest was the left stump in the last entry, which was 60 

inches as measured by Little with his tapeline.9

 Tr. 266, 267. He pointed out that it is really easy 

when at the breaker line to see the stumps just 20-25 feet away. Tr. 275. He stated it was very 

obvious the stumps were not adequate; you can look and tell the difference between a 6-foot and 

a 2-foot stump. Tr. 284. Little also testified that when he went behind the curtains into the 

timbers he would move around and look at the stumps from different angles, and it did not take 

 7

 The numbers across the bottom of exhibit Rx-G provide an example of how entries are 

numbered. 

8

 A “rib line” is an imaginary line projected across the outby edges of a line of pillars of coal as 

illustrated on Exhibit Rx-E in red ink and labeled “Rib Line.” 

9

 The right pillar was not mined in this entry. Gx-5, p. 5; Rx-G. 

36 FMSHRC Page 2209
an educated guess to see that they were smaller than required. Tr. 302, 303. He and Baldwin had 

cap lights, and Baldwin’s was pretty bright. Tr. 305. 

 Since the same conditions existed in 6 entries, Inspector Little asked that the next outby 

line of blocks where entry 4 was then being mined be breakered off and to restart the mining 

cycle in the second line of blocks back, or outby.10 Tr. 290. A safety meeting was held with 

training on the pillar plan, and then Little went back to make sure the timbers had been set and 

the places breakered off. Tr. 292. The section was pulled back one entire crosscut and when the 

new breaker line was set the citation was terminated at 1235 hours. Gx-1. After the new breaker 

line was set, no one would be allowed inby that location.11 Tr. 293. 

 Inspector Little testified that the part of the roof control plan violated in Mine No. 28 was 

the fact that they did not leave the minimum 6-foot stumps at the front of the blocks as required. 

Tr. 268. Little stated that the reason the front stumps were of most concern to him was because, 

“If those stumps are smaller than the required minimum and you have a roof fall starting back in 

there, in the area that’s already mined, those stumps will have a tendency to stop that roof fall of 

that wide area that you’ve already pillared out before it comes into the intersection where most 

people will be working.” Tr. 269. Little explained that the effect of having less than adequate 

stumps is that it compromises safety for the next block that will be pulled.12 Tr. 269, 270. He 

added that if you don’t leave the minimums, a roof fall could come through into the active 

mining section and down the entry. Tr. 282. In the notes he recorded at the time he wrote: 

“Likely to cause a very serious accident or fatality if practice continues.” Gx-5. 

 Inspector Little noted that the miners were taking 3 cuts in all the blocks. Tr. 278, 300. 

Little learned this in a conversation with a miner, who told him it was hard to take 3 cuts and 

leave the 6 foot minimum stump. Tr. 279, 311, 339. According to the miner men, a cut will 

usually range from 14 to 16 feet wide. Tr. 280. Little calculated the size of the block compared 

to the usual width mined into the block and determined it would be difficult to leave the 

minimum 6 foot stump. Tr. 279, 280. He testified that by looking back into the pillar line, they 

had taken 3 cuts, because if there had not been 3 cuts, there would have been bigger stumps 

evident. Tr. 311. Inspector Little concluded that all of the stumps were deficient as they failed to 

meet the required 6 foot minimum in the roof control plan. Tr. 282, 284. When asked about a 

continuous miner rubbing an outby corner and knocking off the corner, Little testified that he did 

not see where a continuous miner had knocked anything off of a corner. He added that he could 

see the lines where the miner head had cut into a block and not left the right size of the stumps. 

Tr. 306, 307. Little pointed out that the presence of paint lines would tell you nothing about the 

size of the stumps being left; the size can be determined only when the area has been mined. Tr. 

276 In his notes, Little documented that General Manager James Slone (“Manager Slone” or 

 10 The new breaker line was one full row of pillars back or outby from the breaker line where 

Little observed the pillar stumps. The new breaker line is indicated by the initials CL adjacent to each 

entry in blue marker pen on Rx-G. 

11 See also Gx-3, page 21, paragraph 16 of the roof control plan: “No person shall work or travel 

inby the posts installed at the breakline where full or partial pillaring has been performed”. 

12 “Pulled” is taken to mean “mined”. 

36 FMSHRC Page 2210
“Slone”) arrived on the section and Little invited him to travel the line and observe the cited 

conditions. Slone declined to observe to size of the stumps complaining he was tired and his 

back hurt. Gx-5, page 10. 

 Robert Henry Bellamy (“Graduate Engineer Bellamy” or “Mr. Bellamy”) also testified 

for the Secretary. Referring to Exhibit Rx-E, he testified that it shows the minimum size of the 

blocks and the number and width of the cuts or lifts that can be taken out of a block. Tr. 351, 

352. The top and bottom remnants of a block have a minimum size and are most important for 

stability of the mine roof. Id. Mr. Bellamy explained this is because you don’t want to take out 

so much coal that the roof starts falling in on you. Tr. 353. Enough coal is to be left to where the 

block can be mined, it will remain standing, and miners can get out of the area. Tr. 354. When 

asked about the possibility of a back block sloughing off, crushing out, or equipment rubbing 

against it, Mr. Bellamy testified that one foot would not be as much of a concern as a 2, 3, or 4 

foot reduction. Tr. 354, 355. However, he also testified that if there were a reduction from 6 foot 

to 5 foot across an entire section, indicating a practice of not maintaining the minimum amount, 

this would be a big concern. Tr. 355. As an Inspector, Mr. Bellamy stated he had issued 

citations, considering that stumps smaller than the plan provides to be a hazard. Tr. 356. He 

further testified where across a section an entire row of back blocks did not meet the minimum, 

this would be citable. Tr. 359. In addition, Mr. Bellamy testified that where you leave the coal is 

important; you want to leave it next to intersections and at the bottom of the block for support 

and to keep the roof from riding in on the pillar you are mining. Tr. 377. 

 Graduate Engineer Bellamy had conversations with Inspector Little and Danny Robinette 

(‘Robinette”) after the citation and order were issued. He became aware that Robinette had gone 

up the bleeder line13 and looked at the pillar line from 2 rows of blocks below where Little had 

been. Tr. 367, 368. Mr. Bellamy testified that since Robinette had not looked at the same thing 

as Little, it was not surprising Robinette had said the mine was in compliance. Tr. 369. 

 James Tackett Jr. (“State Inspector Tackett” or “Tackett”) is an Inspector for the Office 

of Mine Safety and Licensing for the state of Kentucky. Tr. 234. He testified he was familiar 

with the No. 28 mine, and was there on October 18th. Tr. 234, 235. On Exhibit Rx-G, he 

indicated by a circle with a “B” inside in black ink where he was at the breaker line of entries 2 

and 3. The pillars he noticed had not been pulled and he was told an order was issued and they 

had to pull back a line. Tr. 236, 237. Tackett also testified that when backing out, the breaker 

timber posts all across a row of pillars must be set in place prior to mining. Tr. 247. On the 18th, 

the entire row where mining was taking place was breakered off. Tr. 237-239. He did not go 

inby because it was breakered off and it was against the law for anyone to go inby. Tr. 239, 240. 

He could see the pillars that had not been pulled, but had no way of knowing about the size of 

the stumps that had been pillared inby the check curtain line.14 Tr. 240, 241. Although he had 

been at the mine several days before, on October 15th, he did not record in his notes any 

observations of residual stumps. Gx-4. 

 13 Identified by the double line of large red letter “B”s on Exhibit Rx-G 

14 The check curtain line is illustrated on Exhibit Rx-G by the letter “C” in all entries except entry 

4. 

36 FMSHRC Page 2211
 Contestant’s first witness was General Mine Foreman Jody Heath Baldwin (“Foreman 

Baldwin” or “Baldwin”). He has been a coal miner for 19 years and employed at Mine No. 28 

for 5 years. Tr. 34. He has underground mine foreman and MET certifications and has been 

involved in pillaring for 12 to 14 years. Tr. 34, 35. He accompanied Inspector Little on October 

17, 2012 in the retreat mining section. Tr. 36. Referring to page 24 of the Roof Control Plan, 

Exhibit Rx-E, Baldwin testified that 2 cuts of coal per side were taken out of the blocks on 

October 17th. Tr. 37, 42, 51. Referring to Exhibit Rx-G, he explained that there were 7 entries 

and the center entry, number 4, was where mining would begin after the 8 breaker timber posts 

were set.15 Tr. 39-41. He testified that each cut from a block is 12 feet wide. Tr. 43. Baldwin 

further testified the minimum stump is 6 foot, and the mine foreman marks this on the rib and 

roof for the miner operator. Tr. 45-49. He also testified that when each group of timber posts is 

set, no one can go past or inby that point. Tr. 50, 51; Ex. Rx-E 

 Foreman Baldwin testified that on October 17th, the top 2 rows of blocks had been 

finished and mining was in entry No. 4 of the middle row of blocks.16 Tr. 53. He and Inspector 

Little went to entry No. 1 through the check curtain and to the breaker timbers17 and looked up 

into the worked out area. At this location Little stated that the stump could possibly be too 

small.18 Tr. 56. Baldwin also testified that the distance from where they were standing to the 

stump was approximately 28 feet. Tr. 57. 

 From the same location in the number 2 entry, Little again stated to Baldwin that a corner 

(stump) was too small and informed Baldwin if any more corners looked the same he would 

write a “d” citation and a “d” order. Baldwin testified he did not think anything was wrong with 

them. Tr. 58. Again from the same location in entry No. 3 Little told him a corner was too small 

and in addition to the citations mining would cease and pull back one full row; Baldwin testified 

he could not tell that the stump was not 6 feet. Tr. 59. 

 In the number 4, 5, and 6 entries Little stated to Baldwin both corners were too small. Tr. 

68, 69. At entry number 7 Baldwin testified he could not judge whether the corner was too 

small. Little went to the corner and measured it with his tapeline as 5 feet 4 inches or 5 feet 6 

inches. Tr. 70, 71. Baldwin then told Little you could see where the corner had been rubbed by 

the miner, Tr. 97, and that could cause the measurement to be 5 feet. Tr. 101. Baldwin instructed 

the Section Foreman to pull back one row, pull the belt, and timber the row of pillars off.19 Tr. 

 15 The small circles on Exhibit Rx-E represent the timber posts. 

16 The middle row is the third row from the top of exhibit Rx-G. 

17 This area is illustrated by a large letter “C” and small circles in the entries just outby the mined 

out area on exhibit Rx-G. 

18 The drawn red circle with the number 2 adjacent on the left side of exhibit Rx-G illustrates the 

location of this stump in entry number 1. 

19 The new breaker line was then at the top of the row of blocks with the large letter ”F” on 

exhibit Rx-G. 

36 FMSHRC Page 2212
61, 62, 73. In further testimony, Baldwin acknowledged that a minimum of 6 foot must be left 

on the outby corners of a block. Tr. 88, 96. 

 Danny Russell Robinette (“Robinette”) retired from coal mining after 44 years and 8 

months, having spent 10 years and 3 months with MSHA, for a total of 34 years in the industry. 

Tr. 121. During that time, he held all positions from equipment operator to management. Id. 

Robinette was also a foreman during that period of time and had experience with pillaring. Tr. 

122. His specialty while working with MSHA was roof control. Id. In his testimony, he 

described that his approach to inspecting active retreat mining as not worrying about anything 

inby the breaker line. Tr. 129, 131. On October 19th, he went to the breaker line, which was the 

same as the day before. Tr. 132. He did not go to the blocks where Inspector Little had issued 

the paper. Tr. 129. He testified that from where he was standing he could see the No. 2 block 

(stump) which looked smaller than 6 feet, but from the distance he could not tell and he was not 

going through the breaker timbers to go up there and measure it. Tr.134. He gave considerable 

testimony about rounding and other reductions in corner size due to the operation of machinery. 

Tr. 137, 139, 142, 150, 151. However, he acknowledged that only one corner of a block is 

allowed to be rounded. Tr. 153, 154. 

 James Slone (“Manager Slone” or “Slone”) is the Mine No. 28 Mine Manager. He has 

held this position for 4 and a half years, and had been a coal miner for 38 years. He also has a 

mine foreman certification. Tr. 167. Slone recalled on October 17th he was told that the section 

had been shut down and they were pulling back a row since Inspector Little was going to issue a 

citation and an order. Tr. 168, 169. The area cited had been mined on the 16th. Tr. 201. He went 

underground at about 12:00 to 12:30 pm, Tr. 192, to the entry No. 7 breaker posts, where he 

observed the No. 7 corner to have quite a bit of sloughage off of the rib but he did not see a plan 

violation. Tr. 170, 171. He then went to entries 6, 5, and 4 and observed no violations of the plan 

Tr. 170-174. Slone testified that in entries 7, 6 and 5 he could see painted lines on the roof 6 feet 

inby the imaginary rib line. Tr. 172-174. He met Baldwin and Little at entry 4. Tr. 174. He did 

not go to entry 3. Inspector Little invited Slone to go back over the area with him, but Slone 

testified he absolutely did not want to go with Little. Tr. 174, 175. 

 The next day, October 18th, Manager Slone testified he went back through all seven 

entries, saw painted marks on the roof, but did not see a violation of the roof control plan. Tr. 

180. In his opinion, you cannot see any useful information about a stump from 28 to 34 feet 

away after pillaring has been completed. Tr. 184. He also testified that he took no notes on the 

17th, 18th, or 19th. Tr. 192. 

 Jackie Lynn Holbrook (“Manager Holbrook” or “Holbrook”) is the General Manager of 

Operations at Cam Mining, having been involved with Mine 28 for 8 years. Tr. 212. Manager 

Holbrook has been a coal miner for 27 years and has certifications in surface and underground 

mining as well as a mine foreman certificate. Id. In addition, Holbrook has 27 years of 

experience in pillaring. Tr. 216. Holbrook testified that on the morning of October 18th, he and 

Slone went to the breaker timbers of every entry from 1 to 7 and he did not observe any 

violation. Tr. 214, 215. He also testified that from a 25 to 30 foot distance he could not see well 

enough to tell anything about a 6-foot corner. Tr. 222. He met James Tackett between entries 5 

and 6. Tr. 225. He acknowledged that Tackett’s notes revealed he was one crosscut inby Spad 

36 FMSHRC Page 2213
No. 6671. This location, with the initials “JT” in black ink on Rx-G, is behind the new breaker 

line set the day before. 

CONTENTIONS 

 Cam Mining argues that Citation No. 8273702 incorrectly alleges a violation of 

75.220(a)(1) that the approved roof control plan for the 001/003 section was not being followed. 

Cam further argues that 6 feet of the outby corners of pillars as measured from the starting point 

where the miner head cuts into the pillar were left as provided in the RCP. Cam asserts that only 

2 cuts were taken from each side of a pillar and more coal than anticipated by the RCP was being 

left. Cam contends that any appearance of a stump less than 6 foot can be caused by the 

continuous miner and shuttle cars contacting a stump while maneuvering, collapse of the stump 

under normal roof pressure, or viewing the stump from the breaker line 25 to 26 feet away with 

only cap lights. Cam also maintains that the Foreman paints a 6 foot mark on the rib prior to 

mining, but the paint may not be visible after the ripper head cuts into it. Cam supports its 

arguments by referencing Roof Control Specialist Robinette’s statement to Mine Manager Slone 

on October 19, 2012 that he did not see a violation. 

 The Secretary contends that the operator failed to follow the approved RCP on October 

16, 2014 by not leaving the minimum 6 foot stumps. The Secretary asserts that each stump in 

the row of pillars mined on the 16th was readily visible looking inby from the breaker line and 

each was smaller than required by the RCP. The Secretary argues that a miner admitted to the 

Inspector they could not leave the minimum stumps with the cutting plan they were using. The 

Secretary contends any paint lines would only show where the Foreman intended to cut and not 

where cuts were actually made, and any residual paint cannot establish compliance with the 

RCP. The Secretary further argues that the testimony of the Inspector is more credible than that 

of the mine’s witnesses because none of them took notes regarding the stumps and they did not 

see the stumps as observed by the Inspector since the breaker line on October 18th was one full 

row of pillars outby where it was at the time of the inspection. 

DISCUSSION AND ANALYSIS 

 Inspector Little and Foreman Baldwin arrived at the area of active mining at about 10:00 

to 10:15 AM on October 17, 2012. On that day, compliance with the mine’s approved RCP was 

a part of the regular inspection of retreat mining at Mine No. 28. Little had considerable mining 

experience, including as a Section Forman in retreat mining and at least 6 years judging stump 

sizes. The process he uses to inspect for RCP compliance is to begin at the breaker line of an 

outside (left or right) entry and then, when travelling across each entry, he goes back to the 

breaker line of the row of pillars being mined. He moves inby the curtain to look at both the 

timber post placements and the sizes of the stumps left after the previous row of pillars, just inby, 

were mined. When standing in the timbers he moves around to look at those residual stumps 

from different angles. 

 At entry number 1, only the right pillar had been mined, and Inspector Little observed 

that the minimum stump had not been left. As he moved from entry to entry, from a distance of 

about 20 to 24 feet across the crosscut, he observed that the stumps were smaller than required. 

36 FMSHRC Page 2214
At the last, number 7 entry, only the left pillar was mined, and with his tapeline Little measured 

the residual stump as about 5 feet 4 inches to 5 feet 6 inches. Little concluded that none of 

stumps remaining in the row of mined out pillars met the 6 foot minimum requirement, and the 

citation issued reflects this finding. 

Since roof support had been compromised for the area of active mining, the row of pillars 

just outby the noncompliant stumps, Inspector Little asked that this row of pillars be breakered 

off and mining moved back to the second row of pillars outby. This was accomplished in about 

2 hours and the citation was terminated at 1235 hours. The new breaker line was now one full 

row of 60-foot long pillars back or outby from where Little observed the noncompliant stumps. 

It is important to note that prior to mining the next row of pillars, the breaker line timber posts 

must be set in place across the entire row. This means that as of the afternoon of October 17th, 

the new breaker line was two crosscuts and one full pillar length, or about 100 feet, from the 

stumps observed by Little. It is uncontroverted that no one20 is allowed inby a breaker line21. 

From the testimony and notes of Inspector Little, the following chart is a summary of the 

approximate stump sizes he found at each entry. 

Entry Left Stump Right Stump

1 not mined minimum not left 

2 2 feet 42 inches (Lacks 16-18”) 

3 4 feet 3 feet 

4 3 feet 18 inches 

5 2 feet 4 feet 

6 3 feet 1 feet 

7 5 feet not mined 

Gx-5, Tr. 321, 322. 

I find the testimony of Inspector Little to be credible. He made careful, direct 

observations and specific size estimates and documented his findings in his notes. Far from 

speculation, his conclusions were grounded by judgment based on his underground experience, 

knowledge and expertise including retreat mining. Further, at entry 7, Little even used his 

tapeline to confirm that the left stump was too small. What is remarkable about the residual 

stump sizes, as shown by the chart, is that most of the stumps were so far reduced in size that 

failure to meet the minimum was very obvious. Even the largest stump was measured at less 

than 6 feet. 

From the above discussion it follows that I find credible the determination of Inspector 

Little that 3 cuts were being taken from each side of each pillar. While this was not a part of the 

condition or practice described in Citation No. 8273702, Contestant has argued that only 2 cuts 

20 The exception is that a MSHA Inspector may go inby, as Little did to measure the stump at 

entry 7. 

21 See Exhibit Gx-3, the RCP, page 21, paragraph 16. 

36 FMSHRC Page 2215
were taken out of each side of the pillars, in an effort to show that the minimum 6 foot stumps 

were left after mining. This argument fails. Little’s conversation with a miner that morning 

when added to his own observations is very revealing. The miner told him it was hard to take 3 

cuts and leave the 6-foot minimum stump. The miner also said the cuts taken were 14 to 16 feet 

wide. Little noted that if there had not been 3 cuts, the stumps would have been bigger. 

 This can easily be understood using only simple calculations. Where the length of a 

pillar is 60 feet and 3 12-foot cuts are taken leaving 2 3-foot webs, a total of 42 feet of the length 

of the pillar is accounted for leaving 18 feet or about 9 feet available for each outby corner 

stump. But if 3 14 to 16 foot wide cuts are taken, as reported by the miner, the residual stumps 

would be reduced to 6 feet or less. 

 Where, as contended, only 2 cuts are taken leaving 1 3-foot web and the cuts are 12 feet 

wide, only 27 feet of the 60 foot length of the pillar is accounted for leaving 33 feet or about 16 

feet for each outby corner stump. Even using 2 14 to 16-foot wide cuts the residual stumps 

would still be about 12 to 15 feet at each corner. 

 With about 9 or more feet left for each corner stump, a considerable amount of coal is left 

to account for the “sloughage” and “rounding” so much contended by Contestant. It follows that 

if less than 6 feet is actually left for a corner stump, more coal is being removed than allowed by 

the RCP. The consequence is less roof support to protect the miners working just outby in the 

next row of pillars. Contestant’s attempt to show that only 2 cuts were being taken, including the 

illustration of 2 cuts on Exhibit Rx-G, is simply not believable. Indeed, the miner’s report to 

Inspector Little of 14 to 16 foot cuts when combined with 3 cuts on each side of a pillar better 

accounts for the noncompliant remnants actually left, especially with the “sloughage” and 

“rounding” the Contestant contends occurred. 

 I find the testimony of Graduate Engineer Bellamy to be credible and supportive of the 

testimony of Inspector Little. Mr. Bellamy candidly testified that a 1 foot reduction in the size of 

one stump would not be a concern, but also testified that further reduction in that stump size or a 

reduction of 1 foot in all stumps across a row would be a big concern. As an inspector, he had 

issued these kinds of citations since smaller stumps than allowed would be a hazard. Mr. 

Bellamy pointed out that the minimum size is important for stability of the mine roof; you don’t 

want to take out so much coal that the roof falls in. Mr. Bellamy testified that where you leave 

the coal is important, next to intersections and at the bottom of the block for support. 

 State Inspector Tackett’s testimony is notable because he was there on October 18th, the 

day after the breaker line had been moved one row of pillars outby, and from this new breaker 

line he saw pillars that had not been pulled. The entire row where mining was taking place was 

breakered off. He did not know anything about the next inby row of pillars. Therefore, he and 

anyone else in the area on October 18th could not see what Inspector Little observed and cited the 

day before. 

 Foreman Baldwin accompanied Inspector Little on October 17th across each entry and 

was present at the breaker line as Little made his observations. Baldwin was in the best position 

to rebut the findings of the Inspector. Yet his testimony falls far short. Unlike the detailed 

36 FMSHRC Page 2216
estimates of Little, Baldwin only stated that he did not think anything was wrong with the 

corners and he could not tell or judge if a stump was too small. He provided no estimate of the 

dimension of any stump. 

 Further, Baldwin referred to Exhibit Rx-E, page 24 of the RCP, and testified that only 2 

cuts of coal were being taken out of the blocks on October 17th. But the noncompliant stumps 

were left by the previous mining cycle, the day before. What was happening in active mining at 

the time of the inspection would not necessarily be the same as the conditions during the prior 

mining cycle that left the noncompliant stumps. However, during the inspection, Inspector Little 

walked right by where active mining was just ceased in entry 4, and observed that the stumps 

there were also too small. Vague and evasive, Baldwin’s testimony is not credible and does 

nothing to discredit the findings of Inspector Little. 

 Manager Slone in his testimony attempted to contradict the findings of Inspector Little as 

well. Slone stated he “felt like what [he] had observed was in compliance.” But Slone went to 

the area after it was shut down, and when invited to accompany Inspector Little across the line 

and look at what was being cited he claimed the onset of back pain and tiredness and refused the 

invitation. Gx-5, p. 6. Remarkably, he testified that he absolutely would not go with Inspector 

Little. This thinly veiled expression of hostility, even in the context of the excuse offered, was 

perhaps due to mining pulled back a full row and the loss of that revenue22, or perhaps to the 

discovery by the Inspector that the mine was taking more coal than allowed by the RCP. 

Looking at only a part of the area on the 17th with the knowledge that citations were going to be 

issued, Slone, who had worked as General Mine Manager for Mine No. 28 for 4 and a half years, 

would be more likely to fail to perceive any violation of the roof control plan. 

 Manager Holbrook and Manager Slone went to every entry the next day, October 18th. 

Both testified they did not observe any violation. Both testified to the effect that from the 

distance across a crosscut, you cannot see well enough to tell anything useful about a stump. But 

in his testimony, Holbrook acknowledged he was behind the new breaker line set the day before. 

Therefore, on October 18th, neither Slone nor Holbrook saw what Inspector Little observed, 

documented and cited. 

 It is particularly telling that Slone did not document any of his observations on any day, 

and did not venture an actual estimate of the size of any stump across the row. His testimony 

was also vague, essentially stating his opinion that the mine was “in compliance”. The testimony 

of this witness was so vague and self-serving that I cannot find it to be credible. Holbrook’s 

testimony is discounted as not relevant to the citation issued. 

 Robinette’s notes recorded on October 19th do not show anything other than he did not 

observe a violation. Rx-C. He did not go to the places where Little issued the paper. He was 2 

crosscuts and a row of pillars outby the stumps cited by little, a distance of over 100 feet. 

Graduate Engineer Bellamy testified that since Robinette had not seen the same thing as Little, it 

was not surprising Robinette had said the mine was in compliance. This comment is made only 

to show that Contestant’s attempt to support its arguments by referring to Robinette’s statement 

to Manager Slone on October 19th is misplaced. 

 22 Tr. 15, 219. 

36 FMSHRC Page 2217
 The mine is required to mark the coal ribs to indicate the minimum size of the stump not 

to be mined. Gx-3, page 20, paragraph 3. Slone testified he could see painted lines on the roof 6 

feet inby the rib line. However, the presence of paint on the roof is not controlling; it is the size 

of the residual stump left after a pillar is mined that is important. This testimony by Slone is 

remarkable as it tends to eviscerate one of Contestant’s primary arguments (and Slone’s own 

testimony) that you cannot see anything useful from across a crosscut. Certainly, if a paint mark 

can be seen from 20 to 25 feet away and estimated to be 6 feet inby the rib line, one would also 

be able to see and estimate the size of the stump at that same location. 

I find that it is entirely possible to estimate, from the breaker line, the size of the residual 

stumps left after coal pillars are mined. As will be set forth below, it is also necessary to 

perform this task. 

 From the above it follows, and I specifically find, that there was a violation of 30 C.F.R. 

75.220(a)(1). 

Order No. 8273703

EVIDENCE 

 After arriving at the mine on October 17,, 2012 Inspector Little checked the record books 

and found there was a retreat mining section and that no hazards were reported for the 001-0 and 

003-0 areas. Gx-5, pp. 2,3. After discovering the violation discussed above, at 1100 hours he 

issued this Order with the following Condition or Practice: 

 A perfunctory pre-shift exam was conducted on the 001-0/003-0 super 

section on 10-17-2012. The hazardous conditions cited in citation 8273702 which 

were created by not leaving the required size coal stumps to protect miners from 

falls caused by retreat mining should have been observed by the examiner, 

reported to the operator, and corrected prior to beginning mining. This citation is 

evaluated S&S due to the failure of the examiner to recognize and correct the 

conditions created by faulty pillar recovery. This violation is an unwarrantable 

failure by the operator to comply with a mandatory standard. This violation is an 

unwarrantable failure to comply with a mandatory standard. 

 After a safety meeting, the Order was terminated at 1330 hours. 

 The section of Title 30 of the regulations cited was §75.360(b)(3). 

Gx-2. 

 Preshift examinations at fixed intervals are governed by 30 CFR §75.360. As relevant to 

this case: 

36 FMSHRC Page 2218
(a)(1)...a certified person designated by the operator must make a preshift 

examination within 3 hours preceding the beginning of any 8-hour interval during 

which any person is scheduled to work or travel underground. No person other 

than certified examiners may enter or remain in any underground area unless a 

preshift examination has been completed... 

 The specific section of the regulation cited for this Order provides, in pertinent part: 

(b) The person conducting the preshift examination shall examine for hazardous 

conditions and violations of the mandatory health or safety standards referenced 

in paragraph (b)(11) of this section...at the following locations: 

(3) Working sections and areas...if anyone is scheduled to work on the section or 

in the area during the oncoming shift. The scope of the examination shall include 

the working places, approaches to worked-out areas...and the examination shall 

include tests of the roof, face and rib conditions...(emphasis added) 

Paragraph (b)(11) links preshift examinations to other regulatory provisions, and subsection (i) 

requires that preshift examinations include identification of violations of roof control standards: 

(11) Preshift examinations shall include examinations to identify violations of the 

standards listed below: 

(i) §§ 75.202(a) and 75.220(a)(1)--roof control... 

 As set forth above, §75.220(a)(1) requires the mine to follow its approved Roof Control 

Plan. 

 Inspector Little had told Foreman Baldwin that the preshift examiner is required to look 

for hazardous conditions, including violations of the roof control plan. Tr. 286. Little further told 

Baldwin that the pre-shift examiner was to record hazardous conditions and correct them before 

mining began. Tr. 286. At the time, there should have been 2 preshift examinations by 2 

foremen, 1 on the 16th and the 1 before the current shift started, providing at least 2 shots at 

finding and correcting the conditions. Tr. 270, 306. 

 Little testified that when he had conducted preshift examinations on a retreat section, he 

looked for several things. He usually began by checking the entries that would be pillared in. Tr. 

271. He checked the test holes to see if there was any separation above the roof bolts. Id. He 

checked the timbers to ensure they were not broken in the entries that had been breakered up 

ready to mine. Id. He also checked back in the pillar line that had been mined the shift before to 

see the condition of the roof in that area, and see if timbers were broken. Id. Little also indicated 

that the back breakers on the last center block must be checked to ensure they are all in place, 

unbroken and in proper numbers with proper spacing. Id. 

 Inspector Little testified a preshift examiner is supposed to look for violations of the 

RCP, report such violations and take corrective action. Tr. 272. Little stated that when observing 

the size of stumps from the breakers, people are not in danger since that is where the ventilation 

check curtains are hung and retrieved. Tr. 272. He noted that when the preshift examiner is in 

36 FMSHRC Page 2219
the breakers, not only is a gas test taken, but the ribs, top, timbers and stumps are checked. Little 

also testified that the time required to make an observation regarding the size and quality of the 

stumps is five minutes per entry, and that it is real easy to see the stumps just 20 to 25 feet away. 

Tr. 273, 275. Looking at the corners from the timber line, both he and Baldwin had cap lights, 

and Baldwin’s light was pretty bright. Tr. 305. He pointed out you do not have to enter the 

worked out area to observe the stumps, and whether the area inby the breakers has the right 

amount of support has an effect on the active section. Tr. 329, 330. 

 Inspector Little testified he did not tell anybody they had to go inby the breaker line 

because no one is allowed beyond the breakers except an Authorized Representative. 23 Tr. 286, 

287. He also testified that if the operator hanging a curtain and writing danger on it precluded 

inspectors from going to the breaker line, any type of violation could be hidden behind that 

curtain. Tr. 287. Little stated the mine’s examiners must look for violations of the approved 

RCP, and this includes retreat mining. Tr. 331. Little noted the only way you can make sure of 

compliance with the RCP is to observe an area that has been mined. Tr. 328. 

 In the notes he recorded regarding this Order, Inspector Little wrote: 

Hazardous conditions observed & cited in citation #8273702 should have been 

observed and corrected prior to the start of production on the 001-0/003-0 

MMU’s. Conditions were obvious and should have been observed by examiner to 

be sure pillar plan was being followed. 

GX-5. In addition to the mined area just inby the breakers, Inspector Little testified he walked 

right by the number 4 entry where they were pillaring and he could see the stumps were not big 

enough; he did not need to measure them with his tape. Tr. 294, 295. 

 Graduate Engineer Bellamy, the roof control and impoundment supervisor for District 6 

MSHA, in his testimony supported Inspector Little’s conclusions. Mr. Bellamy testified that the 

roof control plan requires an examiner to check the line of pillars being mined. Tr. 362. Mr. 

Bellamy stated that in a retreat mining section, a mine examiner should look back thru the 

breakers to see what is going on just inby. The examiner should determine if the roof is showing 

signs of being weak, the stumps are starting to crush out, or the timbers are breaking, all before 

you start mining a new line. The examiner should look at the front stumps. Tr. 361-364. This is 

in addition to taking air readings and conducting a gas test. Tr. 362. 

 Foreman Baldwin testified for Respondent that a preshift examiner at the check curtain 

would check a number of things, but would not look at the stumps in the worked out area to 

figure out the dimensions. Tr. 80, 81, 110. Robinette responded to leading questions that he had 

never told an operator a preshift examiner was required to check the corners of a previously 

mined pillar line, and that he did not worry about anything inby the breaker posts. Tr. 130, 131. 

Baldwin, Robinette, Slone and Holbrook all testified that the way to check compliance with the 

RCP is during active mining. Tr. 85, 86, 125, 190, 224. Robinette, Slone and Holbrook all 

testified to the effect that you cannot tell anything useful about a stump from the breaker line. Tr. 

123, 184, 222. 

 23 A MSHA Inspector may be accompanied by a Miner’s Representative. 

36 FMSHRC Page 2220
CONTENTIONS 

 Cam argues no mine examiner should be required to examine and try to determine the 

size of the stumps left on the outby corners of the previous row of mined pillars. Cam asserts 

that the Secretary’s position is virtually impossible to comply with. Cam contends that if mine 

examiners are required to go to the breaker line timbers they would be exposed to unnecessary 

risks and hazards. Cam further argues the order was issued for an area not a part of the preshift 

examination. Cam maintains there was no hazardous condition. 

 The Secretary contends the operator failed to conduct an adequate preshift examination of 

the retreat mining section on October 17, 2012 since all hazards and violations were not recorded 

in the preshift book. The Secretary maintains that the mine’s personnel do go to the breaker line 

timbers and observe a number of required conditions including the timbers, roof, ribs and air 

direction. The Secretary argues that neither Inspector Little nor anyone from MSHA has stated 

that they expect an examiner to go beyond the breaker line to evaluate the size of stumps. The 

Secretary asserts the operator was taking the 3 cuts allowed by the RCP out of the pillars but the 

remaining outby stumps were less than the required 6 foot minimum. The Secretary further 

maintains the practice of leaving less than the minimum sized stumps is very dangerous to 

miners exposing them to the hazard of a roof fall. 

DISCUSSION AND ANALYSIS 

 If, as Contestant argues, the residual stumps along a row of pillars just mined cannot be 

part of a preshift examination, ongoing violations of the RCP could be effectively hidden from 

the required process of observation, reporting and correction of hazardous conditions. Even 

though the RCP specifies the size of each stump to be left, the mine’s own examiners, according 

to Contestant, would not check for compliance. Notwithstanding that the examiners go to the 

breakers to check air quality and direction, and observe the timbers, roof and ribs, Contestant 

asserts they could not and should not look across the crosscut to make sure the residual stumps 

are the correct size and hence adequate for roof support and the safety of miners working just 

outby. 

 The controlling regulations are clear that the preshift examination includes identification 

of violations of roof control plans. Paragraph (b)(11) of §75.360 refers directly to roof control 

standard §75.220(a)(1), set forth above. The Cam Mine #28 RCP specifies that the outby corners 

of pillars left after retreat mining, the stumps, must be a minimum of six feet. To comply with 

§75.360 and the RCP, each examination should and indeed must include a check of the pillars 

just mined. 

 Contestant argues that the preshift examiner cannot observe the residual stumps. 

However, I have already found, above, that it is entirely possible to observe and estimate the size 

of the stumps from the breaker line across a crosscut. I also find there is virtually no additional 

danger to the examiner who is already in the area for other observations and tests, and simply 

checking the stumps would take a minimal amount of additional time. 

36 FMSHRC Page 2221
 Contestant’s compliance arguments regarding paint marking the six foot dimension 

before the beginning of a cut by the miner is clearly an incorrect reading of the mine’s RCP. The 

plan specifies “a minimum of 6’ will be left on the outby corner of the block”. The plain 

meaning of “will be left” is the amount of coal remaining after the block is mined. Contestant’s 

attempts to change the meaning of the requirement through testimony at hearing fail. Where 

paint marks are placed does not control. It is the required dimensions and hence volume of the 

residual stumps left to support the roof that is important to the safety of miners. 

 The remaining compliance argument is essentially that at issue is a worked out area not 

subject to preshift examination requirements. Contestant identifies the area as “off the section” 

and worked out” and not a “working section” pursuant to §75.360(b)(3). Contestant points out 

the rule against going past the last open crosscut to examine a worked out area has not been 

relaxed. 

 The regulation includes not only working sections but also approaches to worked-out 

areas. Also, it is clear that examiners are not required to cross into or enter an area that has been 

mined and breakered off. Standing at the breaker line does not violate the rule. I find that the act 

of walking up to the breaker line to perform a number of observations and tests fits comfortably 

into the phrase “approaches to worked out areas”. And, as noted by the Secretary, the roof and 

timbers located in the intersection beyond the breaker line are checked for hazardous conditions. 

Certainly, if the roof and timbers can be checked, so can the readily visible stumps only 20 to 25 

feet away. 

 I find Inspector Little’s testimony to be the most credible as he followed the general 

procedure he uses for all inspections24 and the validity of this was confirmed by the testimony of 

Graduate Engineer Bellamy. Mr. Bellamy testified that the roof control plan requires an 

examiner to check the line of pillars being mined. Mr. Bellamy added that the examiner should 

go up to the pillar line and see what is going on just inby in addition to taking air readings and 

conducting a gas test. Id. 

 Respondent’s witnesses testified that compliance with the RCP should be checked during 

active mining. But that would be in addition to, and not instead of, checking the residual stumps. 

Baldwin testified that as an examiner he would not look at the stumps, and Robinette, Slone and 

Holbrook testified that you cannot tell anything useful about a stump from the breaker line. 

None of this testimony is persuasive, nor is Robinette’s response to leading questions that he did 

not worry about anything inby the breaker posts. Robinette also testified that the preshift 

examiner must only examine a worked out area where miners are going to work and travel. This 

assertion is an incorrect statement of the law. 30 CFR 75.360(b)(11) requires the preshift 

examiner to identify violations of the list of standards contained in that subsection, without 

qualifying that requirement by showing that miners will work and travel in that area. 30 CFR 

75.360(b)(11)(i) specifically requires that the preshift examination include identification of 

violations of roof control standards. 

 24 Little’s procedure is consistent with MSHA Handbook Number PH 13-V-4, appendix J, which 

names as critical pillar retreat sections, and instructs that inspections should check the dimensions of final 

stumps among other things. The Handbook section was in effect in October 2012. 

36 FMSHRC Page 2222
Because the preshift examiner did not examine for hazardous conditions by looking into 

the area recently mined and checking compliance with the RCP, Contestant violated 30 CFR 

§75.360(b).

CONCLUSION 

For the reasons set forth above, I find the Contestant mine did violate 30 CFR § 

75.220(a)(1) and 30 CFR § 75.360(b)(3) and Citation No. 8273702 and Order No. 8273703 were 

Validly issued to Cam Mining LLC. 

ORDER

The valid Citation and Order issued to the Contestant are AFFIRMED. 

/s/ Kenneth R. Andrews

Kenneth R. Andrews 

Administrative Law Judge 

Distribution: 

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

Suite 230, Nashville, TN 37219-2440 

Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Boulevard East, P.O. Box 

273, Charleston, WV 25321-0273 

36 FMSHRC Page 2223
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

August 20, 2014

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner

v.

ORIGINAL SIXTEEN TO ONE MINE, 

 INCORPORATED,

 Respondent

CIVIL PENALTY PROCEEDING

Docket No. WEST 2011-119-M

A.C. No. 04-01299-232472

Docket No. WEST 2011-465-M

A.C. No. 04-01299-241610

Docket No. WEST 2011-1239-M

A.C. No. 04-01299-258369

Docket No. WEST 2012-516-M

A.C. No. 04-01299-278376

Mine: Sixteen to One Mine

DECISION

Appearances: Douglas L. Sanders, Esq., U.S. Dept. of Labor, Office of the Solicitor, 

Denver, Colorado, for Petitioner;

Michael M. Miller, President, Original Sixteen to One Mine, Inc., 

Alleghany, California, for Respondent.

Before: Judge Bulluck

These cases are before me upon Petitions for Assessment of Civil Penalty filed by the

Secretary of Labor (“Secretary”) on behalf of his Mine Safety and Health Administration

(“MSHA”) against Original Sixteen to One Mine, Incorporated (“Original Sixteen”), pursuant to

section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815. The

Secretary seeks a total civil penalty in the amount of $2,582.00 for twenty-two violations of his

mandatory safety standards.

A hearing was held in Nevada City, California. The following issues are before me: 

(1) whether Respondent violated the standards; (2) whether the violations were significant and

substantial, where alleged; (3) whether the violations were attributable to the level of gravity

36 FMSHRC Page 2224

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1

 The Secretary’s Motion for Partial Summary Decision on MSHA’s jurisdiction over the

mine was granted from the bench, incorporating by reference an earlier decision finding

jurisdiction, docket No. WEST 2009-63-M. Tr. 4-5. 

2

 Allard left MSHA in January 2012 and at the time of the hearing, worked for the

California Department of Industrial Relations, Division of Occupational Safety and Health. 

Tr. 13-14. 

alleged; and (4) whether the violations were attributable to the level of negligence alleged.1 The

parties’ Post-hearing Briefs are of record.

For the reasons set forth below, I VACATE two citations; AFFIRM nine citations, as

issued, and eleven citations, as modified; and assess penalties against Respondent.

FACTUAL BACKGROUND

Original Sixteen operates the Sixteen to One Mine, an underground gold mine in

Alleghany, California. Tr. 289, 336. On May 10, 2011, Bruce Allard, an MSHA inspector for

approximately twelve years, conducted a regular inspection of the mine.2 Tr. 12-14. He

observed several conditions for which he cited Original Sixteen: a fire extinguisher that had not

been inspected since February 2007; a ladder with broken rungs; a fire suppression system that

had been turned off; an out-of-adjustment stationary grinder; bolts strewn on a storage room

floor; uncovered plastic pails containing oil and other combustible materials; and unlabeled pails

containing oil and other combustible materials. Exs. P-4, P-5, P-7, P-8, P-9, P-10, P-11; Tr. 17,

21, 25, 31, 35, 38, 41. Allard returned to the mine on May 11 and issued citations to Original

Sixteen for excess timber stored within 100 feet of the mine portal, and for failure to keep a

record of defects on a front-end loader. Exs. P-12, P-13; Tr. 44-45, 47-48.

On July 20, 2010, MSHA Inspector William Berglof inspected the mine. Tr. 113, 

116-17. He issued a citation to Original Sixteen for an arc welder with an uninsulated stinger. 

Ex. P-14; Tr. 115-16. The following day, he returned to the mine and issued citations for failure

to conduct underground evacuation drills within a six-month period, and for exceeding the noise

limit to which a miner may be exposed without enrolling him in a hearing conservation program. 

Exs. P-15, P-16; Tr. 122, 127.

On October 20, 2010, Berglof returned to the mine, accompanied by MSHA Inspector

Joshua Love. Tr. 150-51. Berglof issued several citations for violations which he encountered: a

broken shovel; two fire extinguishers that had not been inspected since September 2009, and one

that had not been inspected since August 2007; a power cord with a damaged outer jacket; an

out-of-adjustment stationary grinder; dry vegetation near a diesel storage tank; and missing

berms on an access road. Exs. P-17, P-18, P-24, P-21, P-19, P-20, P-22, P-23; Tr. 152, 155, 

161-62, 159, 163-64, 170, 176-77, 182. The next day, Berglof and Love returned to the mine,

and Berglof issued a citation for an open hole adjacent to a travelway. Ex. P-25; Tr. 186-87.

On December 13, 2011, Jerry Hulsey, an MSHA inspector for approximately thirteen

years, inspected Sixteen to One. Tr. 107-08, 112. He issued a citation for Original Sixteen’s

36 FMSHRC Page 2225
3

 At hearing, Original Sixteen withdrew contest of Citation No. 8609870, and agreed to

pay-in-full the Secretary’s proposed penalty of $100.00. Tr. 111-12. 

4

 30 C.F.R. § 57.4201(a)(2) provides that: “Firefighting equipment shall be inspected

according to the following schedules: [a]t least once every twelve months, maintenance checks

shall be made of mechanical parts, the amount and condition of extinguishing agent and

expellant, and the condition of the hose, nozzle, and vessel to determine that the fire

extinguishers will operate effectively.” 

failure to conduct continuity and resistance testing for its electrical grounding system.3

 Ex. P-2;

Tr. 112.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Citation No. 8561729

Inspector Allard issued 104(a) Citation No. 8561729, alleging a violation of section

57.4201(a)(2) that was “unlikely” to cause an injury that could reasonably be expected to result

in “lost workdays or restricted duty,” and was caused by Original Sixteen’s “high” negligence.4

The “Condition or Practice” is described as follows:

A 10 lb. fire extinguisher located on the 1300 level at 49 Winze had not received

an annual inspection of the mechanical parts and extinguishing agent since

February 2007. The fire extinguisher appeared to be in good condition. The area

is normally accessed by one miner once a month. Three citations were issued at

this mine for similar violations on the last inspection.

Ex. P-4. The citation was terminated after a compliant fire extinguisher was brought to the 1300

level. 

A. Fact of Violation

In order to establish a violation of one of his mandatory safety standards, the Secretary

must prove that the violation occurred “by a preponderance of the credible evidence.” Keystone

Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas

Co., 11 FMSHRC 2148, 2152) (Nov. 1989)). 

Allard testified that the standard requires fire extinguishers to be inspected annually, and

that this fire extinguisher’s inspection tag indicated that its last inspection had occurred in

February of 2007. Tr. 17-18. Allard opined that if the fire extinguisher were defective, a miner

fighting fires would suffer burns or smoke inhalation; however, because this extinguisher was

charged and in good condition, injuries would be unlikely. Tr. 18-19. 

Michael Miller, President of Original Sixteen, disagreed, opining that there was no

likelihood of injury, since no ignition source was present. Tr. 340-41. The record indicates that

the fire extinguisher had not been inspected in over three years, and I credit Allard’s testimony

that burns or smoke inhalation, while unlikely, would result in lost time or restricted duty

injuries. Therefore, I find that the Secretary has proven a violation of section 57.4201(a)(2). 

36 FMSHRC Page 2226
5

 30 C.F.R. § 57.11050(a) provides that: “Every mine shall have two or more separate,

properly maintained escapeways to the surface from the lowest levels which are so positioned

that damage to one shall not lessen the effectiveness of others. A method of refuge shall be

provided while a second opening to the surface is being developed. A second escapeway is

recommended, but not required, during the exploration or development of an ore body.” 

B. Negligence

Allard opined that Original Sixteen’s negligence was high, since it had received three

citations on a previous inspection for failure to inspect Sixteen to One’s fire extinguishers. 

Tr. 18-19. Miller argued that the area was not a travelway, that no work was taking place in the

location during the inspection, that the mine had a small crew of experienced miners, and that

this extinguisher had not been cited in four years, all mitigating factors in his view. Tr. 340. 

Miller added that Original Sixteen had at least 50 fire extinguishers in the mine. Tr. 413.

I credit Miller’s testimony that no miners were working on the 1300 level at the time of

inspection, and that there were at least 50 fire extinguishers in the mine. Original Sixteen may

have neglected to inspect the subject fire extinguisher, which was not located in an active mining

area, based on the sheer abundance extinguishers in the mine, irrespective of notice that greater

efforts at compliance were necessary; simply put, it was likely overlooked. Therefore, I find that

the negligence in violating the standard was lower than alleged, and that Original Sixteen was

moderately negligent. 

2. Citation No. 8561730

Inspector Allard issued 104(a) Citation No. 8561730, alleging a “significant and

substantial” violation of section 57.11050(a) that was “reasonably likely” to cause an injury that

could reasonably be expected to result in “lost workdays or restricted duty,” and was caused by

Original Sixteen’s “moderate” negligence.5 The “Condition or Practice” is described as follows:

The secondary escapeway was not properly maintained in that the upper wooden

stairway/ladder in the 49 Winze would not support the weight of a miner. The

second and third rungs broke during this inspection. It is reasonably likely that

unmaintained stairway/ladders in this travelway would result in serious injuries to

the miner who travels it monthly for inspection and to check the water level in the

winze.

Ex. P-5. The citation was terminated after a new ladder was installed. 

A. Fact of Violation

Allard testified that the second and third rungs broke when either he or the accompanying

miner mounted the ladder. Tr. 21-22. He opined that MSHA’s Program Policy Manual requires

that escapeways provide miners with safe means of egress to the surface during an evacuation. 

Tr. 23; Ex. P-6. Without a functional ladder, a miner would be unable to safely negotiate the tenfoot vertical distance between the upper and lower levels to escape in an emergency. Tr. 23-24. 

Allard testified that it would be reasonably likely that a miner attempting to climb the ladder

would break through the rungs and fall 11⁄2 feet, sustaining strains, sprains or a broken ankle. 

36 FMSHRC Page 2227
Tr. 24-25. Allard also opined that Original Sixteen was moderately negligent, because the ladder

was used infrequently. Tr. 25. 

Miller made counter arguments that the area was not an escapeway and that it was

infrequently used, that Original Sixteen could not anticipate the rungs breaking, and that miners

were trained to act properly in emergencies. Tr. 342-47. The operator also argues that because it

was exploring or developing an ore body on the 1000 level, a secondary escapeway was not

required. Resp’t Br. at 2; Tr. 346. Unfortunately, the record is devoid of evidence supportive of

Original Sixteen’s contention. I find, based on record evidence that the ladder was defective, that

Original Sixteen violated the standard. 

B. Significant and Substantial

In Mathies Coal Company, the Commission set forth four criteria that the Secretary must

establish in order to prove that a violation is “significant and substantial” (“S&S”) under National

Gypsum, 3 FMSHRC 822 (Apr. 1981): 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 1, 3-4 (Jan. 1984); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th

Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’d 9

FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). Evaluation of the third criterion,

the reasonable likelihood of injury, should be made in the context of “continued normal mining

operations.” U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). Moreover, resolution of

whether a violation is S&S must be based “on the particular facts surrounding that violation.” 

Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1998); Youghiogheny & Ohio Coal Co., 9 FMSHRC

2007, 2011-12 (Dec. 1987). The Secretary need not prove a reasonable likelihood that the

violation, itself, will cause injury. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010). 

 The fact of violation has been established, and a miner using the ladder to conduct

monthly inspections or as part of an escapeway would be subjected to the hazard of a 11⁄2 foot fall. 

The focus of the S&S analysis, then, is the third and fourth Mathies criteria, i.e., whether the

hazard was reasonably likely to result in an injury, and whether the injury would be serious. 

I find that a miner breaking through the ladder rungs and falling 11⁄2 feet would be

reasonably likely to suffer musculoskeletal injuries such as sprains, strains and fractures. 

Therefore, I find that the violation was S&S. 

C. Negligence

I also find that the defect was not obvious based on the fact that it was not readily

apparent until the rungs broke. Ex. P-5 at 3. While it is clear that the ladder was old and that

periodic, precautionary replacement would have been prudent to prevent an accident, it is

speculative to pinpoint when that should have happened. Therefore, I find that Original Sixteen

was negligent, but that its negligence was low. 

36 FMSHRC Page 2228
6

 30 C.F.R. § 57.4560(a) provides that: “For at least 200 feet inside the mine portal or

collar timber used for ground support in intake openings and in exhaust openings that are

designated as escapeways shall be . . . a fire suppression system, other than fire extinguishers and

water hoses, capable of controlling a fire in its early stages [.]” 

3. Citation No. 8561731

Inspector Allard issued 104(a) Citation No. 8561731, alleging a violation of section

57.4560(a) that was “unlikely” to cause an injury that could reasonably be expected to be “fatal”

and was caused by Original Sixteen’s “high” negligence.6 The “Condition or Practice” is

described as follows:

The fire suppression system provided for the timber in the mine portal was not

maintained. The water supply has been turned off and two sprinkler heads leaked

when the water was turned on. A fire in the portal could result in fatal injuries to

the three miners who normally work underground. A 480 volt power cable

entering the mine through the portal provides a possible ignition source. This

same condition of the fire suppression system has been cited previously at this

mine.

Ex. P-7. The citation was terminated after the water supply was turned on.

A. Fact of Violation

Original Sixteen has conceded the violation, but contests the gravity and negligence

designations. Tr. 16. 

Allard opined that when mine fires occur in the portal, carbon monoxide is pulled into the

mine which, historically, has fatally poisoned miners. Tr. 29. However, he also testified that

miners would be able to escape from the Sixteen to One mine. Tr. 29.

On the other hand, Miller testified that Original Sixteen is ventilated by natural air flow

and that in May, when the citation was issued, air was flowing out of the mine. Therefore, by his

account, should a fire have occurred, no carbon monoxide would be entering the mine. Tr. 349;

Resp’t Br. at 3. Allard agreed that the mine has a natural ventilation system, and that air flows in

or out depending on temperature. Tr. 60-61. 

I find that, in the unlikely event of a fire which could occur from the ignition source of the

480-volt cable running through the portal, based on Allard’s testimony that miners could escape,

that miners would be likely to suffer lost time or restricted duty or, at worst, permanently

disabling respiratory injuries. I further note that the likelihood of a miner suffering permanently

disabling injuries is lessened by Miller’s unchallenged testimony that the portal was ventilated

with out-flowing air, which would dilute noxious fumes. Therefore, I find that the Secretary has

proven that the violation of section 57.4560(a) was unlikely to result in lost workdays or

restricted duty, rather than fatal injuries. 

36 FMSHRC Page 2229
7

 30 C.F.R. § 57.14115(b) provides that: “Stationary grinding machines, other than

special bit grinders, shall be equipped with adjustable tool rests set so that the distance between

the grinding surface of the wheel and the tool rest is not greater than c inch [.]” 

B. Negligence 

Allard opined that Original Sixteen’s negligence was high, because it had been cited for

this condition on at least two previous occasions; he testified that he had issued one of these

citations. Tr. 30. These prior citations, he argued, put Original Sixteen on notice of the

requirement that the portal have a functional sprinkler system. Tr. 30-31. In response, Miller

argued that Original Sixteen was using fire retardant paint which, according to him, is acceptable

as a fire suppression system. Tr. 348. There is no support in the record for Original Sixteen’s

contention that fire retardant paint satisfies the requirement for a fire suppression system, and I

also find that Original Sixteen had been put on notice that greater efforts at compliance were

necessary. Therefore, I find that Original Sixteen was highly negligent in violating the standard. 

4. Citation No. 8561732

Inspector Allard issued 104(a) Citation No. 8561732, alleging a “significant and

substantial” violation of section 57.14115(b) that was “reasonably likely” to cause an injury that

could reasonably be expected to result in “lost workdays or restricted duty,” and was caused by

Original Sixteen’s “moderate” negligence.7

 The “Condition or Practice” is described as follows:

The adjustable tool rest on the “Bitco” stationary grinder located in the upper shop

was not adjusted so that the distance between the grinding surface of the wheel and

the rest was not greater than c". The tool rest was 5

/16" from the grinding wheel. 

It is reasonably likely that the miner who uses the grinder several times per month

would suffer serious injuries from small parts being caught between the rest and

the grinding wheel.

Ex. P-8. The citation was terminated after the tool rest was properly adjusted.

A. Fact of Violation

Allard testified that if the distance between the wheel and the tool rest is greater than c

inch, a small object being ground could be pulled in between the wheel and the rest, pulling a

miner’s hand along with it into the wheel. Tr. 31-32. He opined that the wheel could be spinning

as fast as 3400 revolutions per minute, and contact with the wheel could result in abrasions and

broken bones to the hand. Tr. 33-34. Original Sixteen argues that the purpose of the standard is

to ensure that grinders can be adjusted to c inch, and that this grinder had that adjustment. 

Resp’t Br. at 4.

Contrary to Original Sixteen’s contention, the standard requires that grinders be set so that

the distance between the wheel and the rest does not exceed c inch. Clearly, the condition of the

grinder was in violation of the standard. 

36 FMSHRC Page 2230
8

 30 C.F.R. § 57.20003(a) provides that: “At all mining operations [w]orkplaces,

passageways, storerooms, and service rooms shall be kept clean and orderly [.]” 

B. Significant and Substantial

 The fact of violation has been established, and miners using the wheel out-of-adjustment

would be subjected to broken bones or lacerations to the hands and fingers. Moving to the third

and fourth Mathies criteria, the focus is whether the hazard was reasonably likely to result in an

injury, and whether the injury would be serious. 

Allard opined that since the grinder was used several times per month, it would be

reasonably likely that a tool would be pulled in between the wheel and the tool rest. Tr. 34. 

Jonathan Farrell, former mine manager at Original Sixteen, disagreed, arguing that the 5/16 inch

distance between the wheel and the tool rest would be insufficient to cause injury. Tr. 300-01. 

However, he admitted that it would be unsafe to grind a tool smaller than the size of the gap. 

Tr. 325. I find that a miner would be reasonably likely to sustain broken bones and lacerations to

the hands or fingers should a small hand tool be pulled in between the wheel and the tool rest. 

Therefore, I find that the violation was S&S. 

C. Negligence

Allard opined that management may not have been aware of the condition, and miners had

likely received safety training on operating the grinder. Tr. 34-35. Farrell testified that when he

was in charge of the workforce, he stopped miners from using equipment unsafely and trained

them in proper usage. Tr. 7, 301. There is no indication in the record of Farrell’s period of

employment at the mine, however, and without establishing that he was working there in May of

2011, his testimony is of no value in assessing the operator’s negligence. I credit Allard’s

testimony, and find that Original Sixteen was moderately negligent in violating section

57.14115(b).

5. Citation No. 8561733

Inspector Allard issued 104(a) Citation No. 8561733, alleging a “significant and

substantial” violation of section 57.20003(a) that was “reasonably likely” to cause an injury that

could reasonably be expected result in “lost workdays or restricted duty,” and was caused by

Original Sixteen’s “moderate” negligence.8

 The “Condition or Practice” is described as follows:

The bolt storage room in the upper shop was not kept clean and orderly. The floor

was covered with bolts of various sizes and other small parts. It is reasonably

likely that the miner who accesses the room several times daily would suffer

serious injuries from slipping on small rolling objects. 

Ex. P-9. The citation was terminated after the bolts and parts were removed from the floor and

returned to their container.

36 FMSHRC Page 2231
9

 “SQUARE” is an acronym for Safety-Quality-You-Accountability-Responsibility

Efficiency. Resp’t Br. at 16. 

10 30 C.F.R. § 57.4104(a) provides that: “Waste materials, including liquids, shall not

accumulate in quantities that could create a fire hazard.” 

A. Fact of Violation

Allard testified that he observed that a container of bolts, nuts and other small parts had

been emptied onto the storage room floor, and not cleaned up afterwards. Tr. 35-36; Ex. P-9 at 2. 

Original Sixteen offered no challenge to the inspector’s allegation. I credit Allard’s testimony

that the storage room floor was littered with small objects, and I find that Original Sixteen

violated section 57.20003.

 

B. Significant and Substantial

 Allard opined that miners accessing the room several times daily could slip and fall on

these small, rolling objects, resulting in sprains and broken bones. Tr. 36-37. Miller testified, on

the other hand, that miners do not often enter the room, located in a remote area, and that they

only do so if looking for an irregular-sized bolt. Tr. 351-53; Resp’t Br. at 4. He opined that a

miner faced no danger of injury because the room was not open to everyone. Tr. 352. 

I find that the hardware debris littering the storage room floor posed a slip-and-fall hazard,

and that a miner slipping and falling would be reasonably likely to suffer musculosketetal injuries

including strains, sprains, and broken bones. Therefore, I find that the violation was S&S.

C. Negligence 

Allard testified that the miners had received some training in housekeeping of the storage

room. Tr. 37. According to Miller, the miner leaving the hardware strewn on the floor was

following Original Sixteen’s safety first policy, “SQUARE,” of mining first, then housekeeping

later, time permitting.9

 Tr. 353. 

By Original Sixteen’s admission, mining was prioritized over housekeeping. Allard and

Miller both pointed out that miners had received safety training. Although the condition was

obvious, the room was remotely located and, therefore, management may not have been aware of

the condition. Therefore, I find that Original Sixteen was moderately negligent in violating the

standard. 

6. Citation No. 8561734

Inspector Allard issued 104(a) Citation No. 8561734, alleging a violation of section

57.4104(a) that was “unlikely” to cause an injury that could reasonably be expected to result

in“lost workdays or restricted duty,” and was caused by Original Sixteen’s “high” negligence.10

The “Condition or Practice” is described as follows:

36 FMSHRC Page 2232
11 30 C.F.R. § 47.41 provides that: “The operator must ensure that each container of a

hazardous chemical has a label. If a container is tagged or marked with the appropriate

information, it is labeled.” 

About 11 open plastic five gallon pails containing used oil and other combustible

waste were being stored in a small room in the upper shop. There were also about

12 closed pails of used oil in the room. Serious injuries to the one miner normally

in the area could result from a fire in this area. This condition was open and

obvious.

Ex. P-10. The citation was terminated after the waste oil was transferred to closed containers.

A. Fact of Violation

Allard testified that he observed eleven uncovered five-gallon pails containing oil, oil

filters, and waste rags that were being stored in the upper shop, as well as twelve additional pails

that were closed. Tr. 38-39. He opined that oil is a combustible material within the purview of

the standard, and that were a fire to occur, miners would suffer burns and smoke inhalation. 

Tr. 38-40. Allard also noted, however, that because oil does not readily burn, and since the pails

were not stored in the sunlight, a fire was unlikely to occur. Tr. 40. 

Original Sixteen argues that the Secretary has not satisfied the “quantity” requirement of

the standard and, therefore, that he has failed to prove a violation. Resp’t Br. at 5. In somewhat

confusing testimony, Miller stated that there was no waste oil in the area, then identified the area

as designated for used oil storage. Tr. 355-56. He was also of the opinion that a fire would not

occur because there was no ignition source, and that miners would not enter the area, except to

store oil. Tr. 355. 

The Secretary did not provide any evidence demonstrating that the quantity of oil being

stored created a fire hazard. It is evident that Allard cited Original Sixteen because the pails were

uncovered, and that he was not of the opinion that the quantity of oil created a hazard, since the

violation was abated by transferring the oil to closed containers, rather than reducing the amount

being stored. Therefore, I find that the Secretary has failed to prove a violation of section

57.4104(a), and I vacate the citation. 

7. Citation No. 8561735

Inspector Allard issued 104(a) Citation No. 8561735, alleging a violation of section

47.41(a) that was “unlikely” to cause an injury that could reasonably be expected to result in “lost

workdays or restricted duty,” and was caused by Original Sixteen’s “moderate” negligence.11 The

“Condition or Practice” is described as follows:

About 23 plastic five gallon pails containing used oil stored in a small room in the

upper shop were not labeled to indicate their contents. Serious injuries to the one

36 FMSHRC Page 2233
12 I note that the action taken to abate the condition, posting a sign rather than labeling

each unit, did not bring the containers into compliance with section 47.41. 

miner normally in the area could result from improper use or contact with the

contents.

Ex. P-11. The citation was terminated after a sign was posted in the area to indicate the pails’

contents.12

A. Fact of Violation

Allard testified that the standard ensures that miners handling the containers are informed

of their contents, so as to assure proper usage. Tr. 41. He stated that waste oil, a carcinogen, is

classified by MSHA as a hazardous chemical. Tr. 41-42. He explained that the pails had

originally contained other substances, and then recycled to store Sixteen to One’s used oil; some

pails were labeled, but with information pertaining to the original contents. Tr. 42. According to

him, given waste oil’s hazardous classification, improper use could cause miners to suffer lost

workdays from long-term health issues, but miners were unlikely to suffer injury in this case

because they were aware of the containers’ contents. Tr. 42-43. 

Original Sixteen’s argument that the containers were appropriately marked in compliance

with the standard, is contradicted by Miller’s own testimony that the pails could not be labeled. 

Resp’t Br. at 5; Tr. 357. Original Sixteen also argues that Allard provided no evidence that waste

oil is a hazardous chemical as defined by Part 47, that an exemption in section 47.91 for

consumer products applies, that the mine has been inspected by CAL/OSHA four times a year and

never cited for improper storage of waste oil, and that Allard provided no evidence of how a

miner would suffer injury as a result of this condition. Resp’t Br. at 5-6. Miller maintained that

miners would be aware that the containers contained waste oil, and that they are not normally in

the area and would only enter to dispose of oil. Tr. 356-57.

Section 47.11 defines a hazardous chemical as “any chemical that can present a physical

or health hazard.” 30 C.F.R. § 47.11. I credit Allard’s testimony that MSHA classifies waste oil

as a hazardous chemical, and Original Sixteen has presented no evidence beyond Miller’s bare

assertion, that the exemption for consumer products or hazardous substances regulated by the

Consumer Product Safety Commission applies. In short, none of Original Sixteen’s arguments

exempt it from the labeling requirement. Therefore, I find that the standard was violated. 

While I find that Original Sixteen violated the standard, in light of credible evidence that

the miners were fully aware that the pails contained waste oil, the Secretary has presented no

evidence respecting how they would suffer injury from inadequate labeling. Therefore, I find that

this violation had no likelihood of causing injuries that would reasonably be expected to result in

lost workdays or restricted duty injuries.

36 FMSHRC Page 2234
13 30 C.F.R. § 57.4131(a) provides that: “On the surface, no more than one day’s supply

of combustible materials shall be stored within 100 feet of mine openings or within 100 feet of

fan installations used for underground ventilation.” 

B. Negligence

The record establishes that the condition was obvious and had existed over an extended

period of time, and Miller should have known that the oil was classified as hazardous, given that

he is an experienced miner and mine owner. See Tr. 360. However, the area’s known

designation for used oil storage and the miners’ knowledge and familiarity with the contents of

the containers mitigated Original Sixteen’s negligence. Therefore, I find that Original Sixteen

was moderately negligent in violating the standard. 

8. Citation No. 8561736

Inspector Allard issued 104(a) Citation No. 8561736, alleging a violation of section

57.4131(a) that was “unlikely” to cause an injury that could reasonably be expected to be “fatal,”

and was caused by Original Sixteen’s “moderate” negligence.13

The “Condition or Practice” is described as follows:

More than one day’s supply of timber was stored within 100 feet of the mine 

portal. About 100 pieces of timber ranging from 6" x 10" x 10' to 2" x 6" x 8"

were stacked from 30' to 90' from the portal. In the unlikely event that the timber

caught on fire, the three miners normally underground could suffer fatal injuries

from toxic gases.

Ex. P-12. The citation was terminated after the timbers were moved away from the portal. 

A. Fact of Violation

Allard testified that the regulation allows the operator to store only as much timber as the

mine can normally use in one day, within 100 feet of the portal. Tr. 97-98. He opined that the

amount of timber present exceeded a day’s worth of timbering and, thus, Original Sixteen was

storing for future timbering in violation of the standard. Tr. 93, 97-98. In support of his

observation, he recalled that miner Mark Loving told him that timber was being stored near the

portal because it was easier than going up the hill to retrieve it. Tr. 57, 99. Addressing the 

gravity of the violation, Allard opined that the timbers were relatively dry, that a power line,

cutting torches, or smoking could serve as ignition sources, and that if a fire occurred, carbon

monoxide could be pulled underground, fatally poisoning miners. Tr. 46-47, 88-92. However, in

his opinion, combustion was unlikely to occur. Tr. 46-47. 

Miller disagreed with Allard’s assessment that 100 pieces of timber were being stored,

estimating the count to range from 50 and 60 pieces, an amount that the miners could transport

36 FMSHRC Page 2235
14 30 C.F.R. § 57.14100(d) provides that: “Defects on self-propelled mobile equipment

affecting safety, which are not corrected immediately, shall be reported to, and recorded by, the

mine operator. The records shall be kept at the mine or nearest mine office from the date the

defects are recorded, until the defects are corrected. Such records shall be made available for

inspection by an authorized representative of the Secretary.” 

into the mine in a day and, in fact, in one shift. Tr. 362-63. However, Miller also testified that he

believed that it is permissible to store more than one day’s supply of timber, and that combustion

was impossible, given that the timber was wet and no ignition sources were present. Tr. 363, 

366-67, 374. Specifically, Miller stated that an electrical line that Allard identified as a possible

ignition source was, in fact, a phone line. Tr. 89, 366-67; Ex. P-12 at 3-4.

I credit Allard’s testimony and find that Original Sixteen was storing more than one day’s

supply of timber. While I credit Miller’s testimony that the electrical line was a phone line,

Allard’s unrebutted testimony was that cutting torches and smoking were possible ignition

sources. Consistent with my earlier finding respecting the fire suppression system, in the unlikely

event of a fire, the miners would likely escape the mine. Therefore, I find that Original Sixteen

violated the standard, and that the violation was unlikely to result in permanently disabling, rather

than fatal, injuries. 

B. Negligence

While Loving’s statement to Allard suggests that Original Sixteen, as a general practice,

had been storing excess timber at the portal for an extended period of time, I credit Allard’s

testimony that management may not have been aware of the practice. Therefore, I find that

Original Sixteen was moderately negligent in violating section 57.4131(a). 

9. Citation No. 8561737

Inspector Allard issued 104(a) Citation No. 8561737, alleging a violation of section

57.14100(d) that had “no likelihood” of causing “no lost workdays,” and was caused by Original

Sixteen’s “moderate” negligence.14 The “Condition or Practice” is described as follows:

A record of the defects on the 966 FEL located at the upper shop could not be

produced. The loader was tagged out of service with no record of the defects.

Ex. P-13. The citation was terminated after the defects on the loader were documented.

A. Fact of Violation

Allard testified that the loader had been tagged “Do Not Use,” but that Original Sixteen

had not recorded the nature of the defect. Tr. 48. Allard opined that this was a paperwork

violation, with no likelihood of injury. Tr. 49. Miller reasoned that he tagged-out the loader

because he could not find the pre-operational examination record; therefore, according to him, the

36 FMSHRC Page 2236
15 Berglof did not testify at the hearing. The Secretary called Inspectors Jerry Hulsey or

Joshua Love to testify, respecting citations issued by Berglof.

30 C.F.R. § 57.12030 provides that: “When a potentially dangerous condition is found it

shall be corrected before equipment or wiring is energized.”

loader was not defective, and no record of the defect was kept. Tr. 385. Moreover, Original

Sixteen argued that a log book is not an MSHA requirement. Resp’t Br. at 7. 

When Original Sixteen tagged-out the loader, it was required to record the defect and,

therefore, I find that Original Sixteen violated the standard. 

B. Negligence

Allard testified that the operator knew of the recording requirement and failed to report

this defect, but that it had prevented miners from using unsafe equipment by tagging it out. 

Tr. 49-50. Miller testified that he believed Original Sixteen to have complied with the regulation

by tagging-out a piece of equipment which did not have a pre-operational examination record. 

Tr. 378, 384-85. 

I credit Miller’s testimony that he, in good-faith, believed that he had complied with the

standard. In fact, Miller took extra safety precautions by tagging out the loader, even though he

was uncertain of its defects. However, the standard is clear, and Miller should have known of its

recording requirement. Therefore, I find Original Sixteen’ s violation of the standard was caused

by low, rather than moderate negligence. 

10. Citation No. 8561105 

Inspector William Berglof issued 104(a) Citation No. 8561105, alleging a violation of

section 57.12030 that was “unlikely” to cause an injury that could reasonably be expected to be

“fatal,” and was caused by Original Sixteen’s “moderate” negligence.15 The “Condition or

Practice” is described as follows:

The stinger located on the Lincoln Arc Welder, Ideal Arc R3R, located in the

lower shop near the portal was defective, creating an electrocution hazard. Both

the top and bottom tip and half of the bottom insulated components on the stinger

were partially missing exposing the bare conductor. Miners use this welder as

needed to fabricate and make repairs as needed in and around this shop. The

welder was not tagged out of service and was accessible to any of the 4 miners

working on site this day. This condition needs to be corrected prior to energizing

the welding lead. A miner stated he had used this welder approximately 2-3 weeks

ago. The welder was immediately tagged out of service. 

Ex. P-14. The citation was terminated after the stinger was cut off of the positive lead on the

welder.

36 FMSHRC Page 2237
16 30 C.F.R. § 57.4361(a) provides that: “At least once every six months, mine

evacuation drills shall be held to assess the ability of all persons underground to reach the

surface or other designated points of safety within the time limits of the self-rescue devices that

would be used during an actual emergency.” 

A. Fact of Violation

Inspector Jerry Hulsey opined that electricity is transmitted through a stinger, which is

connected to welding leads and clamps to the welding rod. Tr. 119-121. Viewing the photograph

of the stinger, Hulsey opined that the bottom portion of the stinger was missing, exposing the bare

conductors. Tr. 120-21; Ex. P-14 at 4. According to him, if the stinger were connected to a metal

object, an arc flash could occur, potentially causing the person holding the stinger to be

electrocuted. Tr. 118, 121. The Secretary argues that when Berglof inspected the welder, the

stinger was energized with its bare conductors exposed. Secy’ Br. at 20. 

Miller opined that the stinger was obviously damaged, and that a miner would not

energize the welder in such defective condition. Therefore, he asserted, the stinger was not

energized, it did not create a hazard, and Original Sixteen could have repaired it before use. Tr.

387-90. Miller testified that only two miners would use the welder, but admitted that it had not

been tagged-out. Tr. 388.

Berglof’s inspection notes state that he “Interviewed certified welder, he stated he used

the welder 2 -3 weeks ago, it was not damaged like it is now. States he . . . would never use it

with a broken stinger.” Neither the face of the citation, nor Berglof’s notes indicate that the

welder was energized and, because Berglof was not called to testify, I find that the welder was not

energized. Although the welder was not tagged-out of service, the damaged stinger was obvious,

and the standard provides an opportunity for correction of a potentially dangerous condition

before energizing equipment. Therefore, based on my finding that the welder was not energized

when Berglof cited the operator, I vacate this citation.

11. Citation No. 8561106

Inspector Berglof issued 104(a) Citation No. 8561106, alleging a violation of section

57.4361(a) that was “unlikely” to cause an injury that could reasonably be expected to be “fatal,”

and was caused by Original Sixteen’s “high” negligence.16 The “Condition or Practice” is

described as follows:

There has [sic] been no underground evacuation drills conducted at this mine this

year. The underground drill is required at least every 6 months. These drills are

required to assess the ability of all miners underground to reach the surface or

refuge chambers within the time limits of the self-rescue devices. There were

three miners working underground at the time of issuance. 

36 FMSHRC Page 2238
17 30 C.F.R. § 62.120 provides that: “If during any work shift a miner’s noise exposure

equals or exceeds the action level the mine operator must enroll the miner in a hearing

conservation program that complies with § 62.150 of this part.” 

Ex. P-15. The citation was terminated after an unannounced underground evacuation drill was

conducted.

A. Fact of Violation

Original Sixteen conceded the violation, but contests the gravity and negligence

designations. Tr. 396.

Miller opined that miners would evacuate the mine through their regular entrance and exit

route and, therefore, there was no possibility that a miner would be killed in an emergency. 

Tr. 396-97. 

Berglof’s notes do not provide a justification for designating this violation as “fatal,” and

Hulsey did not address this issue. Ex. P-15 at 2. Berglof’s notes state that injury was unlikely

because miners were only working on the 1000 level of the mine. I find that were an emergency

to occur, miners would be able to escape through their familiar routes. However, miners

untrained in quick evacuation response could trip-and-fall, leading to musculoskeletal injuries

such as sprains, strains, broken bones and head trauma or, in the event of a fire, smoke inhalation

and burns. Thus, I find that failure to conduct regular evacuations in accordance with the

standard would be reasonably expected to result in permanently disabling, rather than fatal

injuries. 

B. Negligence

Miller testified that Original Sixteen was not negligent because it has conducted

emergency evacuation drills, including unannounced drills, and that miners were trained in how

to exit the mine. Tr. 397-98.

Berglof’s notes state that “Mr. Miller stated they just forgot to do it . . . . Mr. Miller also

believes this is not required since he [is] in non-producing status . . . .” Ex. P-15 at 2. Based on

the record, I find that Original Sixteen’s management was aware of the requirement to conduct

evacuation drills, and that it has provided no justification for failure to comply with the standard. 

Therefore, I find that there are no mitigating factors, and that Original Sixteen was highly

negligent in violating section 57.4361(a). 

12. Citation No. 8561107

Inspector Berglof issued 104(a) Citation No. 8561107, alleging a violation of section

62.120 that was “unlikely” to cause an injury that could reasonably be expected to be

“permanently disabling,” and was caused by Original Sixteen’s “moderate” negligence.17 The

“Condition or Practice” is described as follows:

36 FMSHRC Page 2239
The results of an MSHA full shift noise sample taken on 07/21/10 showed the

utility miner working underground received an action level noise dose of 132.0%. 

This exceeds the action level dose or 50% plus the error factor (or 66%). The

miner was not enrolled in a hearing conservation program as required by 30 C.F.R.

62.120.

The abatement date for this citation is to allow the mine operator time to enroll the

miner into a formal hearing conservation program which meets all the

requirements of 30 C.F.R. 62.150. 

Ex. P-16. The citation was terminated after the operator offered audiograms to all miners.

A. Fact of Violation

Hulsey testified that if a noise sample exceeds the action level limit, the operator must

enroll miners in a hearing conservation program. Tr. 128-130. The noise sample showed that the

utility miner received a noise dose of 132% which, as Hulsey opined, is double the permissible

limit of the action level, including an error factor. Tr. 129-130; Ex. P-16 at 3. According to

Berglof’s notes, the miner exposed to the excess noise was not enrolled in a hearing conservation

program. Tr. 130; Ex. P-16 at 3. Berglof’s notes also state that a miner exposed to excessive

noise would suffer permanently disabling hearing loss, but that it would be unlikely to occur,

because the miners wore ear plugs and muffs. Ex. P-16 at 3.

Miller agreed that the sample accurately reflected the noise dose that the miner received,

but testified that Original Sixteen offered miners the opportunity to enroll in a hearing

conservation program, which they refused. Tr. 399-400. He testified that as Berglof was

conducting the test, he stated that an air leak distorted the test and made it noisier than normal

levels. Tr. 398. Original Sixteen argues that application of this standard is inappropriate to

Sixteen to One because the mine does not have a predictable noise level; rather, the noise reading

was anomalous. Resp’t Br. at 8-9; Tr. 400. 

Miller conceded that the miner received a noise dose in excess of the action level limit,

and Original Sixteen’s contention that it offered miners enrollment in a hearing conservation

program falls short of the requirement of actually enrolling the miner. A miner exposed to

excessive noise over a prolonged period may suffer permanently disabling hearing loss. 

Therefore, I find a violation of section 62.120, and that it was unlikely to cause permanently

disabling injuries. 

B. Negligence

Berglof’s notes state that the miners had received training on the importance of hearing

protection, and that they were provided ear plugs and ear muffs. Ex. P-16 at 3. No evidence has

been produced to rebut Original Sixteen’s argument that it does not have a history of noise

violations. While these factors mitigate Original Sixteen’s negligence, the noise dose received by

the miner far exceeded the action level. Therefore, I find that Original Sixteen was moderately

negligent in violating the standard. 

36 FMSHRC Page 2240
18 30 C.F.R. § 57.14100(b) provides that: “Defects on any equipment, machinery, and

tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to

persons.” 

13. Citation No. 8561177

Inspector Berglof issued 104(a) Citation No. 8561177, alleging a “significant and

substantial” violation of section 57.14100(b) that was “reasonably likely” to cause an injury that

could reasonably be expected to result in “lost workdays or restricted duty,” and was caused by

Original Sixteen’s “moderate” negligence.18 The “Condition or Practice” is described as follows:

The square nosed shovel, located at the shop, had a damaged splintered handle. 

The 32 inch handle had a 3 1⁄2 inch splintered end with sharp ends. The shovel is

used for clean-up. The shovel was not tagged out of service and is readily

available to any of the five miners on site. This condition exposes miners to a

hand injury hazard.

Ex. P-17. The citation was terminated after the damaged section of the shovel was repaired.

A. Fact of Violation 

Inspector Joshua Love testified that he had been an MSHA inspector since June 2009, and

that he accompanied Inspector Berglof on his October 20 and October 21 inspections of Sixteen

to One, and observed each of the conditions cited during the inspections. Tr. 150-51. He stated

that the shovel with the broken handle was available for use, and miners using it would be

subjected to hand lacerations and possible infection. Tr. 153; Ex. P-17 at 3. Miller, on the other

hand, testified that miners working at Sixteen to One would not have picked up the broken shovel,

especially given that a new shovel was standing next to it. Tr. 403, 405. Miller also argued that

the standard does not apply to a shovel because it is not a mechanical tool. Tr. 409. Original

Sixteen argues that it satisfied the standard by removing the shovel in a timely manner. Resp’t

Br. at 9-10. 

The evidence establishes that the shovel had a splintered handle, and that it was available

for use. Miners using the shovel would be subjected to any of the injuries associated with

handling splintered wood, lacerations and splinters penetrating the fingers or hands, and infection;

therefore, the tool could not be used safely. I credit Miller’s testimony that a new shovel was

readily available next to the splintered one and, therefore, conclude that the violation was unlikely

to result in an injury that would not require lost workdays. Therefore, I find that Original Sixteen

violated the standard, but I also find that the violation was non - S&S. 

B. Negligence

Love agreed with Berglof’s assessment of moderate negligence, and opined that the break

in the shovel was obvious, but that the operator had trained miners to repair broken shovels and

had provided other shovels in good condition. Tr. 154-55. The record establishes that the hazard

36 FMSHRC Page 2241
was obvious, but that Original Sixteen had provided adequate training and made available tools in

good condition, which I consider mitigating factors. Therefore, I find Original Sixteen’s violation

of the standard to be caused by its low, rather than moderate negligence. 

14. Citation No. 8561178

Inspector Berglof issued 104(a) Citation No. 8561178, alleging a violation of section

57.4201(a)(2) that was “unlikely” to cause an injury that could reasonably be expected to result

in“lost workdays or restricted duty,” and was caused by Original Sixteen’s “moderate”

negligence. The “Condition or Practice” is described as follows:

The fire extinguisher, located at the shop, did not have the required annual

maintenance inspection conducted within the last 12 months. The last

maintenance inspection was done on September 2009. The fire extinguisher has

no visible damage to the cylinder and the hose was in good condition. This

condition exposes miners to the hazard of fighting a fire without a fire ready fire

extinguisher.

Ex. P-18. The citation was terminated after the out-of-compliance extinguisher was replaced by

one inspected within the last year. 

A. Fact of Violation

Original Sixteen conceded the violation, but contests the gravity and negligence

designations. Tr. 412. 

Inspector Love testified that a miner fighting a fire with a defective extinguisher would

suffer smoke inhalation and first-degree burns; however, in his opinion, injury was unlikely

because there was no visible damage to the extinguisher. Tr. 158. Miller opined that this fire

extinguisher was not required, and that it was in good condition. Tr. 413. 

Original Sixteen argued that “miners were not endangered due to the paper oversight.” 

Resp’t Br. at 10. The record makes clear that the fire extinguisher was in good condition.

Therefore, I find a violation that was unlikely to cause a miner to suffer injuries resulting in lost

workdays or restricted duty.

B. Negligence

Love and Miller agreed that there were other annually-inspected fire extinguishers in the

area. Tr. 158, 413. While the inspection date on the extinguisher was obvious, I find that the

availability of the other extinguishers mitigated Original Sixteen’s negligence. Therefore, I find

that Original Sixteen was moderately negligent in violating the standard. 

36 FMSHRC Page 2242
15. Citation No. 8561181

Inspector Berglof issued 104(a) Citation No. 8561181, alleging a violation of section

57.4201(a)(2) that was “unlikely” to cause an injury that could reasonably be expected to result in

“lost workdays or restricted duty,” and was caused by Original Sixteen’s “moderate” negligence.

The “Condition or Practice” is described as follows:

The fire extinguisher, located at the upper shop, did not have the required annual

maintenance inspection conducted within the last 12 months. The last

maintenance inspection was done on August 21, 2007. The fire extinguisher has

no visible damage to the cylinder and the hose was in good condition. This

condition exposes miners to the hazard of fighting a fire without a ready fire

extinguisher.

Ex. P-21. The citation was terminated after the out-of-compliance extinguisher was replaced by

one that was in compliance. 

A. Fact of Violation

Love stated that based on Berglof’s notes, this fire extinguisher had not been inspected in

approximately three years, and agreed with Berglof’s gravity determinations for the reasons that

he articulated respecting the prior citation. Tr. 160-61; Ex. P-21 at 3. Original Sixteen offered no

new arguments for its failure to maintain its fire extinguishers in accordance with the standard.

Therefore, I find that Original Sixteen violated the standard.

B. Negligence

Love testified that he agreed with Berglof’s negligence determination for the reasons that

he articulated respecting the prior violation. Tr. 161. Applying the same analysis as in the

previous violation, I find that Original Sixteen was moderately negligent.

16. Citation No. 8561184

Inspector Berglof issued 104(a) Citation No. 8561184, alleging a violation of section

57.4201(a)(2) that was “unlikely” to cause an injury that could reasonably be expected to result in

“lost workdays or restricted duty,” and was caused by Original Sixteen’s “moderate” negligence.

The “Condition or Practice” is described as follows:

The fire extinguisher, located at the 800 level MCC, did not have the required

annual maintenance inspection conducted within the last 12 months. The last

maintenance inspection was done on September 2009. The fire extinguisher has

no visible damage to the cylinder and the hose was in good condition. This

condition exposes miners to the hazard of fighting a fire without a fire ready fire

extinguisher.

36 FMSHRC Page 2243
19 30 C.F.R. § 57.12004 provides that: “Electrical conductors shall be of a sufficient size

and current-carrying capacity to ensure that a rise in temperature resulting from normal

operations will not damage the insulating materials. Electrical conductors exposed to

mechanical damage shall be protected.” 

Ex. P-24. The citation was terminated after the out-of-compliance extinguisher was replaced by

one that was in compliance. 

A. Fact of Violation

Love testified that based on Berglof’s notes, this fire extinguisher had not been inspected

in approximately one year and agreed with Berglof’s gravity determinations, for the reasons he

articulated for the last citation. Tr. 162-63; Ex. P-24 at 3. Original Sixteen offered no new

arguments for this citation. Therefore, I find that Original Sixteen violated the standard.

B. Negligence

Love stated that he agreed with Berglof’s negligence determination for reasons that he had

articulated respecting the previous fire extinguisher violations. Tr. 163. Therefore, I find that

Original Sixteen was moderately negligent.

17. Citation No. 8561179

Inspector Berglof issued 104(a) Citation No. 8561179, alleging a violation of section

57.12004 that was “unlikely” to cause an injury that could reasonably be expected to result in “no

lost workdays,” and was caused by Original Sixteen’s “moderate” negligence.19 The “Condition

or Practice” is described as follows:

The 120v power cord to the overhead light in the change room, had a damaged

outer jacket, exposing the inner insulated conductors to mechanical damage. The

outer jacket had a 1⁄4 inch cut in the outer jacket. Miners use the change room

daily. This condition exposes miners to an electric shock hazard.

Ex. P-19. The citation was terminated after the operator repaired the cable. 

A. Fact of Violation

Love testified that the quarter-inch cut in the outer jacket exposed the inner electrical

wires to mechanical damage. Tr. 164-67; Ex. P-19 at 3. He opined that the cut indicated that the

cable had been damaged, and that something had sliced it. Tr. 167. According to Love, injury

was unlikely because a miner would have to intentionally reach overhead to contact the cable. 

Tr. 169-170. A miner contacting the wires would merely be shocked which, in Love’s opinion,

would not result in lost work time, since the injury would be less severe than first degree burns. 

 Tr. 168-69.

36 FMSHRC Page 2244
 Original Sixteen argues that an outer jacket is not required. Resp’t Br. at 11. Miller

admitted that the outer jacket was damaged, but opined that a miner would not be shocked

because the inner wires were not exposed to mechanical damage. Tr. 419-420. 

I find that the cut in the outer jacket exposed the inner electrical wires to mechanical

damage and that, in the unlikely event that a miner were to contact the exposed wires, an

electrical shock would occur, and any injury would be minor. 

B. Negligence

Love agreed with Berglof’s assessment that Original Sixteen was moderately negligent,

opining that management may not have been aware of the condition of the cable because the room

is typically used only by rank-and-file miners, and that the damaged cable would be difficult to

contact. Tr. 170. I find that Original Sixteen was moderately negligent in violating the standard. 

18. Citation No. 8561180

Inspector Berglof issued 104(a) Citation No. 8561180, alleging a “significant and

substantial” violation of section 57.14115(b) that was “reasonably likely” to cause an injury that

could reasonably be expected to be “permanently disabling,” and was caused by Original

Sixteen’s “moderate” negligence. The “Condition or Practice” is described as follows:

At the fabrication storage, the tool rest on the bench grinder was not set properly. 

The bench grinder was 120V and plugged in. The tool rest was set at 11⁄4 inch

opening. The bench grinder has a speed of 1750 RPM. The grinder was readily

accessible to any of the 5 miners on site. This condition exposes miners to a

serious injury from contacting the grinder wheel. 

Ex. P-20. The citation was terminated after the tool rest was adjusted.

A. Fact of Violation

Love testified that the distance between the wheel and tool rest on this grinder was 11⁄4

inch. Tr. 173; Ex. P-20 at 3-4. Original Sixteen reiterated its argument respecting the prior

grinder citation, that the standard ensures only that the rest be adjustable to c inch, rather than

requiring that the distance between the wheel and tool rest not exceed that maximum setting. 

Resp’t Br. at 11. Miller asserted that “everything the inspector wrote was pure speculation.” 

Tr. 421. As has been discussed, I find Original Sixteen’s position unavailing, and I conclude that

the condition of the grinder violated the standard.

B. Significant and Substantial 

Love agreed with Berglof’s determination that permanently disabling injuries, such as cuts

and lacerations to the hands were reasonably likely to occur, because a hand-held tool would be

36 FMSHRC Page 2245
20 30 C.F.R. § 57.4130(b), pertaining to surface electric substations and liquid storage

facilities, provides that: “The area within the 25-foot perimeter shall be kept free of dry

vegetation.”

21 30 C.F.R. § 57.4130(a)(2) provides that: “If a hazard to persons could be created, no

combustible materials shall be stored or allowed to accumulate within 25 feet of . . . [u]nburied,

(continued...)

pulled into the gap between the wheel and the rest. Tr. 174-75. Again, Miller contended that the

gap would not cause an accident. Tr. 421. 

As with the prior citation for an out-of-adjustment grinding wheel, I find that a miner

would be reasonably likely to suffer broken bones and lacerations should his hands or fingers be

pulled in between the wheel and the tool rest. Therefore, I find that this violation was S&S, and 

that broken bones or lacerations to hands or fingers would be reasonably likely to result in lost

workdays or restricted duty, rather than permanently disabling injuries. 

C. Negligence

Love, also in agreement with Berglof’s determination of moderate negligence, opined that,

while the condition was open and obvious, miners had received training in properly adjusting the

grinder. Tr. 175-76. Miller testified that the only miner who would use the grinder was

experienced. Tr. 421. Based on the obviousness of the condition and evidence that miners had

received training on properly adjusting the machine, I find that Original Sixteen was moderately

negligent in violating the standard.

19. Citation No. 8561182

Inspector Berglof issued 104(a) Citation No. 8561182, alleging a violation of section

57.4130(b) that was “unlikely” to cause an injury that could reasonably be expected be

“permanently disabling,” and was caused by Original Sixteen’s “moderate” negligence.20 The

“Condition or Practice” is described as follows:

The area around the diesel storage tank was not clear of dry vegetation. The diesel

storage tank capacity is 5000 gallons. There is an estimated 300 gallons of diesel

in the tank. There was [sic] large amounts of dry branches 5' in front of and 15'

behind the fuel storage. Miners access the area as needed to fuel service vehicles. 

This condition exposes miners to fire hazards. 

Ex. P-22. The citation was terminated after the vegetation was removed. 

A. Fact of Violation

 Love opined that the regulation applies to the diesel storage tank, because it stores

combustible liquid.21 Tr. 178-79. He testified that because there were no identifiable heat

36 FMSHRC Page 2246
 21(...continued)

flammable, or combustible liquid storage tanks.” 

22 30 C.F.R. § 57.9300(a) provides that: “Berms or guardrails shall be provided and

maintained on the banks of roadways where a drop-off exists of sufficient grade or depth to

cause a vehicle to overturn or endanger persons in equipment.”

sources, a fire would be unlikely to occur. Tr. 180. He also opined that the tank was infrequently

used, but a fire could result from any vegetation accumulated under a heated engine when fueling

a vehicle. Tr. 180. Love disagreed with Berglof’s severity-of-injury determination, however,

testifying that if a fire were to occur, miners would suffer smoke inhalation and first-degree

burns, which would be reasonably likely to result in lost workdays or restricted duty, rather than

permanently disabling injuries. Tr. 179. 

Original Sixteen argues that the photograph taken by the inspector shows vegetation more

than 25 feet away from the tank, and that no consideration was given regarding the current

conditions at the mine. Resp’t Br. at 12. Miller testified that no miner was fueling equipment

when the condition was cited, and that no ignition sources were present. Tr. 421-23. 

I find that dry vegetation was present within the 25-foot perimeter of the fuel storage tank,

and that the tank was infrequently used. I also find that in the unlikely event of a fire, miners

would be subjected to injuries from smoke inhalation and first degree burns, resulting in lost

workdays or restricted duty. Therefore, I find that Original Sixteen violated the standard. 

B. Negligence

Love agreed with Berglof’s assessment of moderate negligence, because the operator

removed some of the vegetation prior to the citation being issued. Tr. 180-81; Ex. P-22 at 5. 

Original Sixteen argued that it was pulling the dry vegetation away from the tank when the

inspector arrived. Resp’t Br. at 12. While the condition was obvious, the evidence is lacking as

to how long the condition had existed; indeed, Original Sixteen was engaged in removing the dry

vegetation when the condition was cited. Therefore, I find that Original Sixteen’s negligence in

violating the standard was low, rather than moderate. 

20. Citation No. 8561183

Inspector Berglof issued 104(a) Citation No. 8561183, alleging a “significant and

substantial” violation of section 57.9300(a) that was “reasonably likely” to cause an injury that

could reasonably be expected to be “fatal,” and was caused by Original Sixteen’s “moderate”

negligence.22 The “Condition or Practice” is described as follows:

The berms along the bank of the access road to the Tightener Portal were not being

maintained. There are two missing berms at the culverts. The road had an average

width of 11 feet. The openings in the berms are between 12-15 feet wide. The

remainder of the berms showed signs of degrading. The estimated drop is 150+

36 FMSHRC Page 2247
feet fall to the floor below. Miners recently accessed the road for the installation

of a fan in the Tightener Portal. This condition exposes miners to a roll over

vehicle hazard. 

Ex. P-23. The citation was terminated after a gate and delineators were installed and a warning

sign was posted.

A. Fact of Violation

Love testified that loaders and service trucks, not equipped with rollover protection,

typically travel on the roadway and, if they were to leave the road, they would fall 150 feet to the

ground below and roll over. Tr. 184-85. Miller argued that miners were in no danger of running

through the berms. Tr. 427. Original Sixteen contends that the mine roads were maintained, and

that the abatement, mere installation of a sign, indicates that the missing berms posed no danger. 

Resp’t Br. at 13. 

I find that there were two 12 to 15-foot gaps between the berms, and that they were

reasonably likely to result in service trucks and loaders leaving the road and plunging down the

150 foot embankment. Therefore, I find that Original Sixteen violated the standard. 

B. Significant and Substantial 

In Love’s opinion, because the road was rough, uneven and rutted, it would be reasonably

likely that a truck would travel through a berm, resulting in the operator’s death. Tr. 185-86. 

Miller opined that miners infrequently traveled in the area, and that no danger was present. 

Tr. 424-27.

I find that a truck or loader, without rollover protection, running through a berm and

plunging 150 feet and overturning, would be reasonably likely to result in the driver sustaining

severe injuries ranging from head trauma to crush injuries, which are potentially fatal. Therefore,

I find that the violation was S&S.

C. Negligence

Love agreed with Berglof’s assessment of moderate negligence, opining that weather had

deteriorated the berms. Tr. 186, 268. The evidence establishes that the condition of the berms

was obvious, and that they had been eroded by weather. I find that, in failing to maintain the

berms in good condition, Original Sixteen was moderately negligent in violating the standard.

21. Citation No. 8561185

Inspector Berglof issued 104(a) Citation No. 8561185, alleging a “significant and

substantial” violation of section 57.11012 that was “reasonably likely” to cause an injury that 

36 FMSHRC Page 2248
23 30 C.F.R. § 57.11012 provides that: “Openings above, below, or near travelways

through which persons or materials may fall shall be protected by railings, barriers, or covers. 

Where it is impractical to install such protective devices, adequate warning signals shall be

installed.”

could reasonably be expected to result in “lost workdays or restricted duty,” and was caused by

Original Sixteen’s “moderate” negligence.23 The “Condition or Practice” is described as follows:

The travelway leading to the 1088 timber repair area has an open hole where

persons or materials may fall and was not protected with a barrier, cover or railing,

creating a slip, trip and/or fall hazard. The open hole is located at the 1084 dump

point. The unprotected area is approximately 8 feet in length with a gradual

downward slope, consisting of loose and unconsolidated material ranging in size

from dust to 14-inches in diameter. A miner slipping and/or falling in this area

would reasonably likely sustain an ankle or knee strain or sprain type injury. The

travelway through this area narrows down to 24 inches, with visible under-cutting

the east side rail noted. Miners access this travelway daily. 

Ex. P-25. The citation was terminated after the hole was covered.

A. Fact of Violation

Love referred to Berglof’s notes, which stated that miners traveled this travelway at least

twice daily to get to the 1088 timber repair area. Tr. 188, 271-72; Ex. P-25 at 5. Love opined that

the hole was eight feet wide by approximately two feet deep, large enough for a person to fall

through, and that it was being used by Original Sixteen to dump ore. Tr. 188-91, 194; Ex. P-25 at

6. He testified that there was no railing, barrier, cover, sign or barricade. Tr. 195. 

Jonathan Farrell testified that the hole was against the mine ribs, which is not where

miners walked, but admitted that the hole was near a travelway. Tr. 317-322. He opined that a

warning light installed by Original Sixteen brought the operator into compliance with the

standard. Tr. 449. Miller also believed that the light provided adequate warning, referencing

another case in which an MSHA special investigator had advised him that a warning light

provides sufficient notice of a hazardous condition. Tr. 455-56. Original Sixteen argues that

Love has limited experience inspecting underground mines, and no experience inspecting gold

mines. Resp’t Br. at 15-16. 

 

I find that the hole was near the travelway used by miners, and that Original Sixteen failed

to protect miners from falling into it. While the warning light illuminating the hole alerted miners

to the hazard, it did not prevent them from falling into the hole as a result of slipping or tripping,

and a protective barrier, as required by section 57.11012, was not impractical. Therefore, I find

that Original Sixteen violated the standard.

36 FMSHRC Page 2249
24 The presumption of Original Sixteen’s relevant history as a non-aggravating factor is

occasioned by the Secretary’s failure to put in evidence the Assessed Violation History Report. 

B. Significant and Substantial

Love agreed with Berglof, testifying that because miners often traveled the walkway

which, at one point, narrows to 24 inches, a fall into the hole was reasonably likely, and a miner

would receive muscle strains, twisted ankles or broken bones. Tr. 190, 193. 

Farrell testified that miners, familiar with the area, would not trip and fall into the hole

and, even if a fall occurred, the miner would not be harmed. Tr. 310, 313. Miller also opined that

the miners would not fall into the hole, given that the floor was flat and a mine car would not flip

over, and that the area was infrequently traveled. Tr. 429, 431, 433. 

The record establishes that the hole was located near a travelway used, at least

infrequently, by miners, and I find that a miner falling into the hole and down the slope of

unconsolidated material would be reasonably likely to suffer musculoskeletal injuries such as

sprains, strains and broken bones. Therefore, I find that the violation is S&S. 

C. Negligence 

Love opined that Original Sixteen’s negligence was moderate, because the operator may

have reasonably believed that no cover was needed for an area where work was being performed. 

 Tr. 194. I find that the hole was obvious, and that Original Sixteen held a good faith belief that

the warning light was sufficient to warn against the danger. However, the standard requires a

physical barrier, and erecting one would not have blocked access to the hole. Therefore, I find

that providing the warning light mitigated Original Sixteen’s negligence, and that it was low,

rather than moderate. 

PENALTIES

While the Secretary has proposed a total civil penalty of $2,582.00 for the violations, the

judge must independently determine the appropriate assessment by proper consideration of the six

penalty criteria set forth in section 110(i) of the Act. 30 U.S.C. § 820(i). Sellersburg Co., 5

FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984). 

Applying the penalty criteria, I find that Original Sixteen is a small operator with an

overall history of violations that is not an aggravating factor in assessing appropriate penalties.24

I also find that Original Sixteen demonstrated good faith in achieving rapid compliance after

notice of the violations. 

Addressing Original Sixteen’s ability to pay, Miller testified that the operator does not

have the assets to pay the penalty proposed by the Secretary, that he would be paying the

penalties personally, and that he does not have sufficient funds to continue operating the mine. 

Tr. 442. In support of its contention, Original Sixteen submitted a gold production report and its

36 FMSHRC Page 2250
Quarterly Report to the Securities and Exchange Commission for the quarter ending March 31,

2012. Exs. R-1, R-7. 

The Commission has held that the mine operator has the burden to prove that the proposed

penalty will affect its ability to continue in business. Sellersburg, 5 FMSHRC at 294. The

financial report submitted by Original Sixteen is unaudited which, as other judges have

recognized, is insufficient support for an inability-to-pay defense. Apex Quarry, 33 FMSHRC

3158, 3162-63 (Dec. 2011) (ALJ) (citing Johnco Materials, Inc., 33 FMSHRC 1431, 1433-34

(June 2011) (ALJ)). Without adequate documentation of Original Sixteen’s financial status, the

effect of the proposed penalties on its ability to continue in business cannot be determined. 

Therefore, I find that Original Sixteen has not met its burden, and that the proposed civil penalties

will not affect the operator’s ability to continue in business.

The remaining criteria involve consideration of the gravity of the violations and Original

Sixteen’s negligence in committing them. These factors have been discussed fully, respecting

each violation. Therefore, considering my findings as to the six penalty criteria, the penalties are

set forth below.

1. Citation No. 8561729

It has been established that this violation of section 57.4201(a)(2) was unlikely to cause an

injury that could reasonably be expected to result in lost workdays or restricted duty, that Original

Sixteen was moderately negligent, and that it was timely abated. The Secretary proposed a

penalty of $100.00. In consideration of my finding as to negligence, I find that a penalty of

$70.00 is appropriate.

2. Citation No. 8561730

It has been established that this S&S violation of section 57.11050(a) was reasonably

likely to cause an injury that could reasonably be expected to result in lost workdays or restricted

duty, that Original Sixteen’s negligence was low, and that it was timely abated. The Secretary 

proposed a penalty of $100.00. In consideration of my finding as to negligence, I find that a

penalty of $80.00 is appropriate.

3. Citation No. 8561731

It has been established that this violation of section 57.4560(a) was unlikely to cause an

injury that could reasonably be expected to result in lost workdays or restricted duty, that Original

Sixteen was highly negligent, and that it was timely abated. The Secretary proposed a penalty of

$224.00. In consideration of my finding as to gravity, I find that a penalty of $160.00 is

appropriate.

4. Citation No. 8561732

It has been established that this S&S violation of section 57.14115(b) was reasonably

likely to cause an injury that could reasonably be expected to result in lost workdays or restricted

36 FMSHRC Page 2251
duty, that Original Sixteen was moderately negligent, and that it was timely abated. Therefore, I

find that a penalty of $100.00, as proposed by the Secretary, is appropriate. 

5. Citation No. 8561733

It has been established that this S&S violation of section 57.20003(a) was reasonably

likely to cause an injury that could reasonably be expected to result in lost workdays or restricted

duty, that Original Sixteen was moderately negligent, and that it was timely abated. Therefore, I

find that a penalty of $100.00, as proposed by the Secretary, is appropriate. 

6. Citation No. 8561734 - VACATED

7. Citation No. 8561735

It has been established that this violation of section 47.41(a) had no likelihood of causing

an injury that could reasonably be expected to result in lost workdays or restricted duty, that

Original Sixteen was moderately negligent, and that it was timely abated. The Secretary proposed

a penalty of $100.00. In consideration of my finding as to negligence, I find that a penalty of

$100.00 is appropriate. 

8. Citation No. 8561736

It has been established that this violation of section 57.4131(a) was unlikely to cause an

injury that could reasonably be expected to be permanently disabling, that Original Sixteen was

moderately negligent, and that it was timely abated. The Secretary proposed a penalty of

$100.00. In consideration of my finding as to gravity, I find that a penalty of $100.00 is

appropriate. 

9. Citation No. 8561737

It has been established that this violation of section 57.14100(d) had no likelihood of

resulting in an injury that could reasonably be expected to result in no lost workdays, that

Original Sixteen’ s negligence was low, and that it was timely abated. The Secretary proposed a

penalty of $100.00. In consideration of my finding as to negligence, I find that a penalty of

$70.00 is appropriate.

10. Citation No. 8561105 - VACATED

11. Citation No. 8561106

It has been established that this violation of section 57.4361(a) was unlikely to cause an

injury that could reasonably be expected to be permanently disabling, that Original Sixteen was

highly negligent, and that it was timely abated. The Secretary proposed a penalty of $207.00. In

consideration of my finding as to gravity, I find that a penalty of $170.00 is appropriate.

36 FMSHRC Page 2252
12. Citation No. 8561107

It has been established that this violation of section 62.120 was unlikely to cause an injury

that could reasonably be expected to be permanently disabling, that Original Sixteen was

moderately negligent, and that it was timely abated. Therefore, I find that a penalty of $100.00,

as proposed by the Secretary, is appropriate. 

13. Citation No. 8561177

It has been established that this violation of section 57.14100(b) was unlikely to cause an

injury that could reasonably be expected to result in no lost workdays, that Original Sixteen’s

negligence was low, and that it was timely abated. The Secretary proposed a penalty of $100.00. 

In consideration of my findings as to gravity and negligence, I find that a penalty of $70.00 is

appropriate.

14. Citation No. 8561178

It has been established that this violation of section 57.4201(a)(2) was unlikely to cause an

injury that could reasonably be expected to result in lost workdays or restricted duty, that Original

Sixteen was moderately negligent, and that it was timely abated. Therefore, I find that a penalty

of $100.00, as proposed by the Secretary, is appropriate. 

15. Citation No. 8561181

It has been established that this violation of section 57.4201(a)(2) was unlikely to cause an

injury that could reasonably be expected to result in lost workdays or restricted duty, that Original

Sixteen was moderately negligent, and that it was timely abated. Therefore, I find that a penalty

of $100.00, as proposed by the Secretary, is appropriate.

16. Citation No. 8561184

It has been established that this violation of section 57.4201(a)(2) was unlikely to cause an

injury that could reasonably be expected to result in lost workdays or restricted duty, that Original

Sixteen was moderately negligent, and that it was timely abated. Therefore, I find that a penalty

of $100.00, as proposed by the Secretary, is appropriate.

17. Citation No. 8561179

It has been established that this violation of section 57.12004 was unlikely to cause an

injury that could reasonably be expected to result in no lost workdays, that Original Sixteen was

moderately negligent, and that it was timely abated. Therefore, I find that a penalty of $100.00,

as proposed by the Secretary, is appropriate.

36 FMSHRC Page 2253
18. Citation No. 8561180

It has been established that this S&S violation of section 57.14115(b) was reasonably

likely to cause an injury that could reasonably be expected to result in lost workdays or restricted

duty, that Original Sixteen’s negligence was moderate, and that it was timely abated. The

Secretary proposed a penalty of $108.00. In consideration of my finding as to gravity, I find that

a penalty of $100.00 is appropriate.

19. Citation No. 8561182

It has been established that this violation of section 57.4130(b) was unlikely to cause an

injury that could reasonably be expected to result in lost workdays or restricted duty, that Original

Sixteen’s negligence was low, and that it was timely abated. The Secretary proposed a penalty of

$100.00. In consideration of my findings as to gravity and negligence, I find that a penalty of

$70.00 is appropriate.

20. Citation No. 8561183

It has been established that this S&S violation of section 57.9300(a) was reasonably likely

to cause an injury that could reasonably be expected to be fatal, that Original Sixteen was

moderately negligent, and that it was timely abated. Therefore, I find that a penalty of $243.00,

as proposed by the Secretary, is appropriate.

21. Citation No. 8561185

It has been established that this S&S violation of section 57.11012 was reasonably likely

to cause an injury that could reasonably be expected to result in lost workdays or restricted duty,

that Original Sixteen’s negligence was low, and that it was timely abated. The Secretary

proposed a penalty of $100.00. In consideration of my finding as to negligence, I find that a

penalty of $80.00 is appropriate. 

ORDER

WHEREFORE, it is ORDERED that Citation Nos. 8561734 and 8561105 are

VACATED.

It is further ORDERED that Citation Nos., 8609870, 8561732, 8561733, 8561107,

8561178, 8561181, 8561184, 8561179 and 8561183 are AFFIRMED, as issued. 

It is further ORDERED that the Secretary MODIFY Citation No. 8561729 to reduce the

degree of negligence to “moderate;” Citation Nos. 8561730, 8561737 and 8561185 to reduce the

degree of negligence to “low;” Citation No. 8561735 to reduce the level of gravity to “no

likelihood;” Citation Nos. 8561736 and 8561106 to reduce the level of gravity to “permanently

disabling;” Citation Nos. 8561731 and 8561180 to reduce the level of gravity to “lost workdays

36 FMSHRC Page 2254
25 Payment should be sent to: Mine Safety and Health Administration, U.S. Department

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

numbers and A.C. numbers.

or restricted duty;” Citation No. 8561182 to reduce the level of gravity to “lost workdays or

restricted duty,” and the degree of negligence to “low;” and Citation No. 8561177 to reduce the

level of gravity to “unlikely,” “non-significant and substantial” and “no lost workdays,” and the

degree of negligence to “low;” and that the citations are AFFIRMED, as modified.

It is further ORDERED that Original Sixteen to One Mine, Incorporated, PAY a civil

penalty of $2,113.00 within 30 days of the date of this Decision.25 ACCORDINGLY, these

cases are DISMISSED. 

/s/ Jacqueline R. Bulluck

Jacqueline R. Bulluck

Administrative Law Judge

Distribution:

Gregory W. Tronson, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway,

Suite 800, Denver, CO 80202

Michael M. Miller, President, Original Sixteen to One Mine, Inc., P.O. Box 909, Alleghany, CA

95910 

/ss

36 FMSHRC Page 2255
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

August 21, 2014 

DECISION 

Appearances: Anthony M. Berry, Esq., U.S. Dept. of Labor, Office of the Solicitor, 

Nashville, Tennessee, for Petitioner; 

James F. Bowman, Bowman Industries, LLC, Midway, West Virginia, for 

Respondent. 

Before: Judge Bulluck 

This case is before me upon a Petition for Assessment of Civil Penalty filed by the 

Secretary of Labor (“Secretary”) on behalf of his Mine Safety and Health Administration 

(“MSHA”) against Pay Car Mining, Incorporated (“Pay Car”), pursuant to section 105(d) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The Secretary seeks a civil 

penalty of $70,000.00 for an alleged violation of section 75.370(a)(1). 

A hearing on the merits was convened in Charleston, West Virginia. Prior to the 

presentation of Pay Car’s case, the parties successfully negotiated a settlement whereby 

104(d)(1) Order No. 8142339 shall remain as issued, and Pay Car shall pay a reduced civil 

penalty of $14,000.00 based on legitimate disputes as to the gravity and negligence designations. 

The Secretary credited the testimony indicating the limited duration of the violation, that the roof 

bolters would not have been aware of the change in the air velocity, and that the water box 

located on the roof bolter lessened the likelihood of serious injury. The settlement agreement 

was tentatively approved on the record, pending filing of the written motion to approve 

settlement. Tr. 173-74. After the hearing, the parties filed a Joint Motion to Approve 

Settlement. 

Pursuant to 29 C.F.R. § 2700.1(b) and Fed. R. Civ. P. 12(f), I strike paragraphs three and 

four from the Joint Motion as immaterial and impertinent to the issues legitimately before the 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

PAY CAR MINING, INCORPORATED, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2013-1027 

A.C. No. 46-08884-323446 

Mine: No. 58 

36 FMSHRC Page 2256

:

:

:

:

:

:

:

:

:
Commission.1

 The paragraphs incorrectly cite and interpret the case law and misrepresent the 

statute, regulations and Congressional intent regarding settlements under the Mine Act. 

I have considered the representations and documentation submitted in the case under 

section 110(k) of the Act. Specifically, the Secretary has credited Respondent’s contentions that 

the roof bolter was equipped with a water box that would have sequestered any respirable dust 

produced, and that the miners operating the roof bolter would have been unable to determine that 

a deficiency in the air existed. I conclude that the proffered settlement is appropriate under the 

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

WHEREFORE, the motion for approve of settlement is GRANTED, and it is 

ORDERED that Pay Car Mining, Incorporated, PAY a penalty of $14,000.00 within 30 days of 

the date of this decision.2

 ACCORDINGLY, this case is DISMISSED. 

/s/ Jacqueline R. Bulluck

Jacqueline R. Bulluck 

Administrative Law Judge 

Distribution: 

Anthony M. Berry, Esq., United States Department of Labor, Office of the Solicitor, 211 7th

Avenue North, Suite 420, Nashville, TN 37219 

James F. Bowman, Representative, Bowman Industries, LLC, P.O. Box 99, Midway, WV 25878 

/ss 

1 The Joint Motion to Approve Settlement reads in pertinent part: 

3. In reaching this settlement, the Secretary has evaluated the value of

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

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

would need to be expanded in the attempt. The Secretary has determined that the 

public interest and the effective enforcement and deterrent purposes of the Mine 

Act are best served by settling the citation as indicated above. 

4. Consistent with the position that the Secretary has taken before the

Commission in The American Coal Company, LAKE 2011-13, the Secretary 

believes that the pleadings in this case and the above summary give the 

Commission an adequate basis for exercising its authority to review and 

approve the parties’ settlement under section 110(k) of the Mine Act, 30 U.S.C. 

§ 820(k). 

2

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

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

number and A.C. number. 

36 FMSHRC Page 2257
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2536 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

August 27, 2014 

DECISION AND ORDER 

Appearances: Emily O. Roberts, Office of the Solicitor, U.S. Department of Labor, 

Nashville, TN for Petitioner; 

Arthur Wolfson, Jackson Kelly PLLC, Pittsburgh, PA for Respondent. 

Before: Judge Miller 

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

of Labor, Mine Safety and Health Administration (“MSHA”) against Marfork Coal Company, 

pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§§ 815 and 820. This docket involves 16 citations, with penalties assessed pursuant to section 

110(i) of the Mine Act. The parties have agreed to settle 15 of the 16 violations, leaving one for 

decision here. The parties presented testimony and evidence at a hearing held on July 9, 2014 in 

Charleston, West Virginia. 

The parties agree that Marfork Coal Company, Inc., a subsidiary of Alpha Natural 

Resources, Inc., owns and operates the Allen Powellton Mine located in Raleigh County, West 

Virginia. Marfork is an operator as defined by the Act, and is subject to the jurisdiction and 

provisions of the Mine Safety and Health Act. The parties further agree that the mine is a large 

operator and payment of the penalty as assessed will not hinder its ability to continue in business. 

Exhibit G-1. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Inspector Ordie J. Sigmon issued Citation No. 7183407 on August 27, 2013 during the 

course of a regular inspection. The Secretary asserts that the Respondent violated 30 C.F.R § 

75.1722(b), which requires guards at conveyor drives and pulleys to extend a distance sufficient

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

v. 

MARFORK COAL COMPANY, INC., 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2014-374 

A.C. No. 46-09092-338087 

Mine: Allen Powellton Mine 

36 FMSHRC Page 2258

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to prevent a person from reaching behind the guard and becoming caught between the belt and 

the pulley. The citation states, in pertinent part, that “. . . the guarding around the tail roller did 

not extend a distance sufficient enough to prevent miners from contacting the rotating moving 

parts of the tail roller . . . . The tail roller shaft extended outward 2 1/2 inches and the guarding 

. . . was left unsecured.” Inspector Sigmon indicated that the violation was significant and 

substantial and the negligence was moderate. The proposed assessed penalty amount is 

$1,111.00. 

While traveling along the belt line of the Powellton Mine, on August 27, 2013, Inspector 

Sigmon observed a turning shaft at the tail pulley that was not completely guarded. Mine 

Inspector Ordie Sigmon has been an inspector for 2 years and, prior to that time, worked in the 

mining industry for 15 years. The mine does not dispute that the guard was in the condition as 

described by Inspector Sigmon, and the mine’s only witness agrees that the shaft at the tail 

pulley was partially covered by a piece of rubber belt used as a guard. The parties agree that the 

shaft is located under the feeder and that it was guarded, at least partially, with a piece of rubber 

belt, but that a portion of the moving shaft extended a number of inches beyond the rubber guard. 

The rubber guard was close to 24 inches long but, to cover the entire area, abate the citation, and 

avoid contact with the moving part, the guard was extended to a length of about 36 inches. The 

inspector explained that the rubber guard was not secured and the mine witness agreed that the 

shaft had pushed the guard out from its original position. Further, Sigmon explained that at one 

time the guard had been long enough to cover the entire area, but had been cut or trimmed with a 

knife, most likely as it wore away. The inspector surmised that the rubber belt guard had been 

somehow altered during a recent belt move. The mine agreed that the belt line is moved every 

other day but did not address any changes that had been made to the rubber guard. The area 

along the belt line is traveled every shift and, during most shifts, it is shoveled or the area around 

the feeder, tail pulley and shaft is otherwise cleaned. 

Like most guarding violations, the dispute here is whether the area around the moving 

parts was accessible to any miner and, if so, would a miner come into contact with the shaft or 

tail pulley and become entangled in the moving parts. It is undisputed that the area around the 

pulley and shaft often has spillage that must be cleaned, and that cleaning is done with a four 

foot long shovel, usually while the miner is on his knees to clean under and around the belt. 

Cleaning of the area around the belt line, and specifically around this feeder and tail pulley, is 

conducted while the belt is in operation and it is done nearly every shift, and sometimes more 

often. Here, the evidence demonstrates that with the 24 inch long rubber guard in place, there 

remains room for a miner to put his arm inside to such an extent that it would contact the moving 

parts. It would be difficult to do that after the guard was extended to a length of 36 inches, based 

simply on the length of the average human arm. 

Jeremy Ball, the mine foreman at the time of the violation, explained that, in his view, the 

moving parts could not have been contacted even before the citation was issued and the mine 

extended the rubber guard. He reasoned that because the shaft and tail pulley are under the 

feeder, and the miner is using a four foot long shovel, the moving parts would not be contacted. 

Ball indicated that the uncovered part of the shaft was visible when approaching the area from 

the front, but not from the side. He further indicated that the tail roller was completely covered 

by the guard and it was only a part of the shaft that remained unguarded. It is his view that a 

36 FMSHRC Page 2259
miner would have to want to reach the shaft, and it would not happen accidently or when 

cleaning or greasing the belt area. While the belt is shut down during maintenance or repairs, it 

continues to operate while cleaning is conducted around the tail pulley area. 

Ball did not address why the guard was not secured as Sigmon indicated it should be, but 

the representative of the mine who accompanied Sigmon explained at the time that someone 

must have forgotten to secure the guard when it was last moved. Ball explained that the belt is 

moved every few days and Sigmon confirmed that leaving the guard unsecured after a move 

made it even easier for a miner to access the moving part. Sigmon testified that the goal is to 

have the guard be of sufficient length so that a miner will not contact the moving parts if he 

reaches an arm in to remove debris or is shoveling and gets pulled in by the tail pulley. Leaving 

enough room to shovel is important, but it must be narrow enough that an arm cannot fit into the 

guard while the belt is operating. 

After considering the testimony of both witnesses, I find that the Secretary has met her 

burden to show a violation. The rotating shaft area did not have a guard that extended its entire 

length. Instead, the rubber guard was 24 inches long and should have been 36 inches in length. 

Hence, the guard, as observed at the time of the violation, did not extend a distance sufficient to 

prevent contact with the moving parts of the shaft and tail roller. I find further that the violation 

was significant and substantial. 

A “significant and substantial” violation is described in section 104(d)(1) of the Mine Act 

as a violation “of such nature as could significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(l). A violation is 

properly designated significant and substantial “if based upon the particular facts surrounding 

that violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.” Cement Division, National Gypsum Co., 3 

FMSHRC 822, 825 (Apr. 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission explained its 

interpretation of the term “significant and substantial” to be: 

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. 

The difficulty with finding a violation S&S normally comes with the third element of the 

Mathies formula, in which the Secretary must establish that there is a reasonable likelihood that 

the hazard will result in an injury. The Commission has explained that the third element of the 

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 

36 FMSHRC Page 2260
1834, 1836 (Aug. 1984). The Commission discussed the third element of the Mathies test in 

Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257 (Oct. 2010) (affirming an 

S&S violation for using an inaccurate mine map). The Commission clarified that the “Secretary 

need not prove a reasonable likelihood that the violation itself will cause injury” but that the 

hazard created would cause an injury. Id. at 1280-81. The Commission reaffirmed its position 

in Cumberland River Coal, 33 FMSHRC 2357, 2365 (Oct. 2011) where it “emphasized the wellestablished precedent that ‘the absence of an injury-producing event when a cited practice has 

occurred does not preclude a determination of S&S.’” (citing Elk Run Coal Co., 27 FMSHRC 

899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)). 

The S&S determination should also include a consideration of the length of time that the 

violative condition existed prior to the citation, and the time it would have existed if normal 

mining operations had continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. 

Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). In addition, the question of whether 

a particular violation is S&S is a circumstantial inquiry that 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). 

Based on the witness testimony and the documentary evidence, the mine argues that this 

violation is not S&S for two reasons. First, no one would get close enough to contact the moving 

part during the routine cleaning of the belt and, second, the area was protected by the feeder that 

sat on top of the tail roller and shaft. The Secretary argues on the other hand, that there was 

room not only for a shovel to contact the moving part, but for an arm to reach under the guard, 

even though located under the feeder, and come in contact with the unguarded moving shaft. 

The belt line, and particularly around the tail pulley, is cleaned every shift while it is in operation 

and at times, more often. The miner normally must get on his knees to reach into the area under 

the belt to clean, giving him less stability while shoveling. It would not be uncommon to reach 

up to unclog the area around the tail pulley during the cleaning. 

The Commission has determined that an experienced MSHA inspector’s opinion that a 

violation is significant and substantial is entitled to substantial weight. Harland Cumberland 

Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal Inc. v. MSHA, 52 F.3d 

133, 135 (7th Cir. 1999). Sigmon reaffirmed that conditions he observed, that is the turning shaft 

that was not completely guarded with a loose rubber guard, created a hazardous condition for 

anyone shoveling along the tail pulley area. A miner trying to dislodge rocks or coal from the 

tail pulley or shaft area could reach his arm into the area to a point where he could contact the 

moving parts. In addition, when shoveling under and around this area of the belt, the shovel 

could get caught in the moving shaft, pulling the miner off his knees and as far as the moving 

part. Contact with the moving shaft would result in broken bones, cuts, or even a crushing injury 

that could result in amputation. The resulting injury was reasonably likely to be permanently 

disabling. 

This finding is consistent with other ALJ decisions. For example, in addressing a 

violation of 75.1722(b), a Commission ALJ found that failure to guard the end of the discharge 

roller at a conveyor drive was an S&S violation. The ALJ rejected the operator's argument that 

the low seam minimized the risk of tripping or falling because miners worked from their knees 

36 FMSHRC Page 2261
and found that working while on their knees increased the likelihood of inadvertent contact 

because, among other things, it is more difficult to maneuver from that position. Williams 

Brothers Coal Co., 24 FMSHRC 110 (Jan. 2002) (ALJ). The operator cites to a recent decision 

by an ALJ in which he found that a violation of 75.1722(b) was not S&S because a feeder sat on 

the belt, making the unguarded area difficult to reach. Big Ridge Inc., 34 FMSHRC 63 (Jan. 

2012) (ALJ). However, the ALJ in that case relied upon the fact that someone would have to 

crouch down to reach the unguarded area and there was no evidence that it was necessary to 

crouch, unlike here where the facts indicate that the miner must be on his knees to shovel under 

the belt. As the Commission stated in Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 

1984), guarding standards should be interpreted to take into consideration a “reasonable 

possibility of contact and injury, including contact stemming from inadvertent stumbling or 

falling, momentary inattention, or ordinary human carelessness.” “Even a skilled employee may 

suffer a lapse of attentiveness, either from fatigue or environmental distractions . . . .” Great 

Western Electric Co., 5 FMSHRC 840, 842 (May 1983). In doing so, that employee may reach 

into the tail pulley area to dislodge a rock, even with the belt in operation. 

I have found that there is a violation of the mandatory standard and that the violation 

creates the discrete safety hazard of contact with rotating moving parts on the tail roller of the 

conveyor belt. Given that the area around the shaft and tail pulley is cleaned while in operation 

every day, and sometimes more often, it is reasonably likely that someone will contact the 

moving part when shoveling or trying to dislodge coal from the belt. When contacting the 

moving part, the miner is likely to be pulled and, as a result, suffer broken bones or serious 

crushing injuries. Therefore, I find that the violation is significant and substantial. 

II. PENALTY 

The principles governing the authority of Commission administrative law judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine act delegates to the Commission and its judges “authority to assess all civil penalties 

provided in [the] Act.” 30 U.S.C. § 820(i). The Act requires, that in assessing civil monetary 

penalties, the ALJ must consider six statutory penalty criteria which include the history of 

violations, the size of the operator, the negligence, gravity, the ability to continue in business and 

good faith abatement. 30 U.S.C. § 820(i). In keeping with this statutory requirement, the 

Commission has held that “findings of fact on the statutory penalty criteria must be made” by its 

judges. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 

1984). Once findings on the statutory criteria have been made, a judge’s penalty assessment for 

a particular violation is an exercise of discretion that includes a consideration of the penalty 

criteria and the deterrent purpose of the Act. Cantera Green, 22 FMSHRC 616, 620 (May 

2000). 

In the instant case, the operator is large, does not have an unusual history of these types 

of violations, and abated the condition in good faith. The inspector indicated that the negligence 

was moderate and, given the facts discussed above, I agree. I have discussed the gravity and 

S&S nature above and find that the $1,111.00 penalty proposed by the Secretary is appropriate in 

these circumstances. 

36 FMSHRC Page 2262
The parties agreed to settle the remaining violations and I find the settlement to be 

appropriate. The terms of the settlement are as follows: 

Citation/Order 

No. 

Originally 

Proposed 

Penalty 

Settlement 

Amount 

Modifications 

7183405 $1,111.00 $700.00 Reduce seriousness of injury from permanently 

disabling to lost workdays or restricted duty 

7183406 $1,111.00 $1,111.00 Reduce seriousness of injury from permanently 

disabling to lost workdays or restricted duty. 

9001693 $634.00 $634.00 None. 

9001694 $2,282.00 $1,500.00 Modify the number of people from 13 to 7. 

9001704 $2,901.00 $2,901.00 None. 

9001707 $2,282.00 $2,282.00 None. 

9001708 $5,503.00 $5,503.00 None. 

9001709 $5,961.00 $2,500.00 Reduce probability of injury from reasonably likely to 

unlikely; Remove the significant and substantial 

designation. 

9001712 $2,901.00 $2,000.00 Reduce the level of negligence from moderate to low. 

9002149 $585.00 $585.00 None. 

9002152 $2,282.00 $1,500.00 Reduce seriousness of injury from fatal to lost 

workdays or restricted duty; Modify the number of 

people affected from 20 to 12. 

9002661 $2,901.00 $2,901.00 None. 

9002662 $687.00 $500.00 Modify the number of people affected from 12 to 7. 

9002665 $585.00 $585.00 None. 

9002666 $3,405.00 $1,352.00 Reduce the seriousness of injury from fatal to lost 

workdays or restricted duty; Modify the number of 

people affected from 12 to 4. 

TOTAL $35,131.00 $26,554.00 

I accept the representations and modifications set forth both at hearing, and in the Motion 

to Approve Settlement and Order Payment. I have considered the representations and 

documentation submitted. I find that the modifications are reasonable and conclude that that the 

proposed settlement is appropriate under the criteria set forth in Section 110(i) of the Act. The 

Motion to Approve Settlement is GRANTED. 

 

36 FMSHRC Page 2263
III. ORDER 

Given my above findings, I assess a total penalty of $27,665.00 for both the settled 

citations and the citation addressed at hearing. The Respondent, Marfork Coal Company, is 

hereby ORDERED to pay the Secretary of Labor the sum of $27,665.00 within 30 days of the 

date of this decision. 

/s/ Margaret A. Miller

Margaret A. Miller 

Administrative Law Judge 

Distribution: 

Emily O. Roberts, U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue North, 

Suite 420, Nashville, TN 32719 

Arthur Wolfson, Jackson Kelly, PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202 

36 FMSHRC Page 2264
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, D.C. 20004-1710

August 28, 2014

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner

v.

RECON REFRACTORY & 

CONSTRUCTION,

 Respondent.

CIVIL PENALTY PROCEEDING

Docket No. WEST 2010-450-M

A.C. No. 02-03243-203823 (NWB)

Mine: Drake Quarry

DECISION AND ORDER

Appearances: Douglas L. Sanders, Esq., U.S. Department of Labor, Office of the 

Solicitor, Denver, Colorado, for Petitioner;

Eugene F. McMenamin, Esq., Atkinson, Andelson, Loya, Ruud & Romo, 

Cerritos, California, for Respondent.

Before: Judge Paez

This case is before me upon the Petition for the Assessment of a Civil Penalty filed by

the Secretary of Labor (“Secretary”) pursuant to section 105(d) of the Federal Mine Safety and

Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). In dispute are five section 104(a)

citations issued by the Mine Safety and Health Administration (“MSHA”) to Recon Refractory

& Construction (“RECON” or “Respondent”) as a subcontractor at Drake Cement Company’s

Drake Quarry mine. To prevail, the Secretary must prove the cited violations “by a

preponderance of the credible evidence.” In re: Contests of Respirable Dust Sample Alteration

Citations, 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11

FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom. SOL v. Keystone Coal Mining Corp., 151

F.3d 1096, 1106-07 (D.C. Cir. 1998). This standard requires the Secretary to demonstrate that

“the existence of a fact is more probable than its non-existence.” RAG Cumberland Res. Corp.,

22 FMSHRC 1066, 1070 (Sept. 2000) (citations omitted).

I. STATEMENT OF THE CASE

Four of these alleged violations involve electrical equipment at Drake Quarry, and the

fifth alleged violation involves workplace examination procedures at the site. First, Citation No.

6453940 charges RECON with a violation of 30 C.F.R. § 56.12025 for the failure to install a

grounding rod on a power generator. Second, Citation No. 6453941 charges RECON with a

violation of 30 C.F.R. § 56.12028 because continuity and resistance testing had not been

36 FMSHRC Page 2265

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1

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

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

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

performed on the aforementioned power generator. Third, Citation No. 6453945 charges

RECON with a violation of 30 C.F.R. § 56.12004 for leaving 13 damaged electrical extension

cords unprotected. Fourth, Citation No. 6453946 alleges a violation of 30 C.F.R. § 56.12025

because the ground prongs on five electrical extension cords and one grounding device were

broken or missing. Finally, Citation No. 6454808 charges RECON with a violation of 30 C.F.R.

§ 56.18002(a) for a failure to perform and document required workplace examinations. The

Secretary designated each violation as significant and substantial (“S&S”).1

 The Secretary

proposed a total civil penalty of $2,535.00 for these five citations.

A hearing was held in Riverside, California. The Secretary presented testimony solely

from MSHA Inspector Enrique Vidal. (Tr. 16:17–101:9; Sec’y Preh’g Statement at 4.) RECON

called three witnesses: Joseph Longstreet, Vice President of RECON; Benjamin Allen,

RECON’s Cost Controls Manager; and Gregory Howearth, RECON’s Corporate Health and

Safety and Environmental Manager. (Tr. 103:8–108:11; 110:17–117:6; 118:4–133:15.) 

II. ISSUES

The Secretary argues that the conditions were properly cited as violations and that the

allegations underlying the citations are valid. (Sec’y Post Trial Br. at 15.) RECON denies each

violation, arguing that the Secretary has failed to meet his burden of proof for each citation. 

(Resp’t Post Trial Br. at 5.)

Accordingly, the following issues are before me: (1) whether, for each citation, the

Secretary proved that a violation of a mandatory safety or health standard occurred at Drake

Quarry; (2) whether the Secretary proved that each alleged violation was S&S; (3) whether the

Secretary proved that RECON acted with moderate negligence regarding each violation; and 

(4) whether the Secretary’s proposed penalties are appropriate.

For the reasons that follow, I AFFIRM as written Citation Nos. 6453940, 6453941,

6453945, and 6453946, and I VACATE the fifth, Citation No. 6454808. 

III. FINDINGS OF FACT

A. Operations at Drake Quarry

Prior to hearing, the Secretary filed a motion for partial summary decision to establish

that RECON was subject to MSHA jurisdiction. (Sec’y Mot. for Partial Summ. Dec.) I held that

the Drake Quarry site was a “mine” under the Mine Act, that the quarry was subject to MSHA

jurisdiction, and that the MSHA inspectors had the authority to issue RECON the citations at

issue in this case. Recon Refractory & Constr., Inc., 34 FMSHRC 1722, 1731 (2012) (ALJ). 

Accordingly, I granted the Secretary’s motion for partial summary decision solely on the issue of

jurisdiction. Id. My findings of fact from that order are reproduced below:

36 FMSHRC Page 2266
2

 The “lay-down area” consists of an office, fabricating area, and shop-area covered by a

tarp. (Tr. 42:25–43:3.)

On April 6, 2009, MSHA assigned a mine identification number to

Drake Quarry, a surface metal/nonmetal mine owned by Drake

Cement Company (“Drake”) and located near Paulden, Arizona. 

On October 6 and 7, 2009, MSHA Inspector Enrique Vidal

conducted a routine health and safety inspection of the Drake

Quarry site. On October 8, 2009, MSHA Inspector Kyle Griffith

continued the inspection of the Drake Quarry site.

RECON was hired as a subcontractor by CCC Group to build a

facility on the Drake Quarry construction site. During the October

2009 inspections, the Secretary's inspectors issued RECON seven

citations, five of which are before me.

Recon Refractory & Const., Inc., 34 FMSHRC 1722, 1724 (2012) (ALJ). 

B. October 6–7, 2009 Inspection

Upon arriving at Drake Quarry on October 6, Inspector Vidal noticed a power generator

(“Gen-set”). (Tr. 20:18–20.) Vidal discovered that the Gen-set did not have a grounding rod. 

(Tr. 20:20–21.) A grounding rod is required to prevent the metal generator from becoming

electrified. (Tr. 23:24–24:4.) Inspector Vidal stated that miners regularly came into direct

contact with the generator, which placed them in danger of fatal electrocution. (Tr. 24:5–25:2.) 

Based on his observations, Vidal issued Citation No. 6453940 alleging a violation of 30 C.F.R. 

§ 56.12025. (Ex. G–2.) He determined that this violation was reasonably likely to result in a

fatal injury to one miner due to the operator’s moderate negligence. Id. MSHA proposed a

penalty of $873.00 for this violation. 

Moreover, because the grounding rod was not installed, testing on the rod could not be

performed. (Tr. 34:21–22.) Accordingly, Vidal also issued Citation No. 6453941 alleging a

violation of 30 C.F.R. § 56.12028. (Ex. G–5.) He determined that this violation was reasonably

likely to result in a fatal injury to one miner due to the operator’s moderate negligence. Id.

MSHA likewise proposed a penalty of $873.00 for this violation. 

Thereafter, during the inspection of the lay-down area2

 in Drake Quarry, Vidal saw a

gang box and asked one of Drake Quarry’s employees about its contents. (Tr. 42:16–17.) The

unidentified employee told Vidal that the gang box contained extension cords available for use

by the miners. (Tr. 42:15–24.) Vidal further observed that out of 13 electrical extension cords,

11 had compromised outer protective jackets along with some damage to the inner conductors.

(Tr. 46:7–11;49:4–17.) In addition, two of the electrical extension cords had completely exposed

bare wiring that could expose miners to 110 volts of electricity. (Tr. 46:7–11;49:4–17.) Vidal

testified that the unidentified employee told him the gang box containing the wires was unlocked

and accessible by any miner. (Tr. 43:22–44:9.) As a result of his observations, Vidal issued

36 FMSHRC Page 2267
Citation No. 6453945 alleging a violation of 30 C.F.R. § 56.12004. (Ex. G–8.) He determined

that this violation was reasonably likely to result in lost workdays or restricted duty to one miner

due to the operator’s moderate negligence. Id. MSHA proposed a penalty of $263.00 for this

violation. 

While inspecting the gang box, Vidal also noticed that the ground prongs on five of the

extension cords were either removed, missing, or broken. (Tr. 51:21–52:8.) Further, an on-site

ground fault current interceptor (“GFCI”)—which is a device intended to prevent

electrocution— was damaged. (Tr. 52:16–53:8.) Based on his observations, Vidal issued

Citation No. 6453946 alleging a violation of 30 C.F.R. § 56.12025. (Ex. G–11.) He determined

that this violation was reasonably likely to result in lost workdays or restricted duty to one miner

due to the operator’s moderate negligence. Id. MSHA proposed a penalty of $263.00 for this

violation. 

C. October 8, 2009 Inspection

On October 8, 2009, Inspector Kyle Griffith issued Citation No. 6454808 at Drake

Quarry alleging a violation of 30 C.F.R. § 56.18002(a). (Ex. G–14.) The citation has boxes

checked noting that the violation was reasonably likely to result in lost workdays or restricted

duty to one miner due to the operator’s high negligence. Id. MSHA proposed a penalty of

$263.00 for this violation. The citation alleges that RECON failed to perform or document such

workplace examinations. (Ex. G–14.) However, neither Inspector Griffith nor any other

authorized representative of the Secretary testified regarding the issuance of this citation. 

IV. PRINCIPLES OF LAW

A. Independent Contractors

The Commission has held that an independent contractor performing services at a mine is

an operator of the mine within the meaning of section 3(d) of the Mine Act. Ames Construction,

Inc., 33 FMSHRC 1607 (July 2011), aff’d, 676 F.3d 1109 (D.C. Cir. 2012) (“independent

contractors who exercise supervision and control—in other words, ones also covered by the

production-operator portion of § 3(d)—are [strictly] liable”). Moreover, the Commission has a

“longstanding view that the purpose of the [Mine] Act is best effectuated by citing the party with

immediate control over the working conditions and the workers involved when an unsafe

condition arising from those work activities is observed.” Old Dominion Power Co., 6

FMSHRC 1886 (Aug. 1984) (citing Phillips Uranium Corp., 4 FMSHRC 549 (Apr. 1982)).

B. Significant and Substantial

A violation is S&S if, “based on the particular facts surrounding that violation, there

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a

reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

To establish an S&S violation, the Secretary must prove: “(1) the underlying violation of a

mandatory safety standard; (2) a discrete safety hazard—that is, a measure of danger to

safety—contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to

36 FMSHRC Page 2268
3

 Section 56.12105 provides: “All metal enclosing or encasing electrical circuits shall be

grounded or provided with equivalent protection. This requirement does not apply to batteryoperated equipment.” 30 C.F.R. § 56.12025.

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. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin

Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving the Mathies criteria).

Aside from specifying the elements I must consider in examining an S&S designation,

the Commission has also provided guidance to Administrative Law Judges in applying the

Mathies test. The Commission found that “an inspector’s judgment is an important element in

an S&S determination.” Mathies, 6 FMSHRC at 5 (citing Nat’l Gypsum, 3 FMSHRC at

825–26); see also Buck Creek Coal, 52 F.3d at 135–36 (stating that ALJ did not abuse discretion

in crediting the opinion of an experienced inspector). The Commission has also observed that

“the reference to ‘hazard’ in the second element is simply a recognition that the violation must

be more than a mere technical violation—i.e., that the violation present a measure of danger.” 

U.S. Steel Mining Co., 3 FMSHRC 822,827 (Apr. 1981). Moreover, the Commission has

indicated “[t]he correct inquiry under the third element of Mathies is whether the hazard

identified under element two is reasonably likely to cause injury.” Black Beauty Coal Co., 34

FMSHRC 1733, 1742–43 & n.13 (Aug. 2012). Finally, the Commission indicated an evaluation

of the reasonable likelihood of injury should be made assuming continued mining operations. 

U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co., 6

FMSHRC 1573, 1574 (July 1984)).

C. Regulatory Interpretation

Interpreting the Secretary’s regulations that implement the Mine Act is a two-step

process. First, unambiguous regulatory provisions “must be enforced as they are written unless

the regulator clearly intended the words to have a different meaning or unless such meaning

would lead to absurd results.” Jim Walter Res., Inc., 28 FMSHRC 578, 587 (Aug. 2006) (citing

Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987), and Utah Power & Light Co., 

11 FMSHRC 1669, 1681 (Dec. 2010) (citing RAG Shoshone Coal Corp., 26 FMSHRC 75, 80 &

n.7 (Feb. 2004)). Second, if the meaning of the regulation is ambiguous, the Secretary’s

reasonable interpretation of the regulation is entitled to deference. Mach Mining, LLC, 

34 FMSHRC 1784, 1806 (Aug. 2012).

V. ADDITIONAL FINDINGS OF FACT — ANALYSIS — CONCLUSIONS OF LAW

A. Electrical Violations

1. Citation No. 6453940 – The Grounding Rod

Section 56.12025 requires operators to ensure that all metal used to enclose or encase 

electrical circuits be grounded or provided with equivalent protection.3 30 C.F.R. § 56.12025. 

36 FMSHRC Page 2269
Moreover, section 56.12025 is a performance standard; thus, it does not specify or require that 

the operator ground the metal in a specific manner. Contractors Sand & Gravel Supply, Inc., 

18 FMSHRC 384, 387 (Mar. 1996) (ALJ). Accordingly, an operator violates section 56.12025 

when it fails to ground the metal that encloses electrical circuits. See Brown Bros. Sand Co., 

17 FMSHRC 578, 584 (Apr. 1995). 

a. Contractor Liability

Inspector Vidal issued Citation No. 6453940 for RECON’s failure to install a grounding

rod on the power generator he observed. (Ex. G–2.) RECON does not dispute that a grounding

rod was absent but instead argues that the Secretary should have issued this citation to the

general contractor, CCC Group, which brought the power generator to the Drake Quarry but

failed to install it properly. (Resp’t Preh’g Report at 3.) Joseph Longstreet, RECON’s Vice

President, testified that, under the contract with CCC Group, RECON was not allowed to

maintain any equipment provided by CCC Group, including the power generator. (Tr.

104:15–22.) However, despite this testimony, RECON failed to provide a copy of the specific

contract provision that spelled out the prohibition it alleges.

Nevertheless, Respondent’s argument misses the mark. The Mine Act is a strict liability

statute that imposes liability without fault for things within one’s control or supervision. See

Sec’y of Labor v. Nat’l Cement Co. of Cal., 573 F. 3d 788, 795 (D.C. Cir. 2009). It is undisputed

that the power generator was located on RECON’s work site. (Tr. 76:25–77:6.) Therefore, the

power generator was under RECON’s control and supervision at the time the citation was issued. 

Although CCC Group installed the power generator, RECON—as a subcontractor hired

to perform work at the mine—is deemed an operator of the mine within the meaning of section

3(d) of the Mine Act. Ames Construction, Inc., 33 FMSHRC 1607 (July 2011), aff’d, 676 F.3d

1109 (D.C. Cir. 2012). Consequently, RECON is strictly liable for the cited condition that

occurred in connection with the power generator. Further, Respondent does not dispute that

the power generator lacked a grounding rod. Accordingly, I conclude that RECON violated

30 C.F.R. § 56.12025.

b. S&S

RECON’s violation of 30 C.F.R. § 56.12025 establishes the first element of the Mathies

test for an S&S violation. The second element of the Mathies test requires that the violation

contribute to a safety hazard. In this case, Inspector Vidal testified that the power generator’s

lack of a grounding rod would expose anyone who came into contact with the energized

generator to approximately 240 volts of electricity. (Tr. 23:24–24:4.) Further, Vidal testified

that the power generator was located right next to where miners worked, and thus miners could

come in direct contact with the generator. (Tr. 24:21; 25–2.) Moreover, Vidal indicated that

240-volt electrocution would likely be fatal. (Tr. 25:14–17.) I give great weight to Inspector

Vidal’s testimony based on his 15 years as a MSHA inspector. Therefore, given Vidal’s

testimony, I determine that the third and fourth Mathies elements are established and, thus,

conclude that this violation was appropriately designated as S&S.

36 FMSHRC Page 2270
c. Negligence

The Secretary’s regulations define negligence as “conduct, either by commission or

omission, which falls below a standard of care established under the Mine Act to protect miners

against the risk of harm.” 30 C.F.R. § 100.3(d). Moderate negligence is appropriate when “[t]he

operator knew or should have known of the violative condition or practice, but there are

mitigating circumstances.” Id. Inspector Vidal stated that looking for a grounding rod is a “very

basic” practice (Tr. 20:20) and information regarding grounding rods is readily available on the

Internet. (Tr. 30:1–3.) Thus, RECON knew or should have known that the power generator

required a grounding rod. Nevertheless, I note that RECON’s status as an independent

subcontractor in conjunction with its understanding that CCC group, as the general contractor,

was responsible for the installation of the power generator somewhat mitigates RECON’s

negligence in this case. Thus, I agree with Inspector Vidal’s determination and conclude that

Citation No. 6453940 was properly designated as “moderate” negligence.

Based on the above analysis, I conclude that RECON violated section 56.12025, that the

violation was S&S, and that the violation occurred as a result of RECON’s moderate negligence. 

2. Citation No. 6453941 – Continuity Testing

Section 56.12028 states the following: “Continuity and resistance of grounding systems

shall be tested immediately after installation, repair, and modification; and annually thereafter. 

A record of the resistance measured during the most recent tests shall be made available on a

request by the Secretary or his duly authorized representative.” 30 C.F.R. § 56.12028.

Inspector Vidal issued Citation No. 6453941 for RECON’s failure to perform continuity

and resistance testing on the same power generator cited in Citation No. 6453940. Respondent

argues that the absence of a grounding rod forecloses a claim for failure to perform the required

continuity and resistance testing. (Resp’t Reply to Sec’y Post-Trial Br. at 2.) Essentially,

Respondent argues that Citation No. 6453941 cannot be sustained if I affirm Citation No.

6453940. Curiously, Respondent cites no case law for the proposition that its duty to comply

with section 56.12028 depends on whether it has satisfied its duty to comply with section

56.12025. Notwithstanding Respondent’s efforts to make compliance with section 56.12025 a

necessary element of section 56.12028, I note that the Mine Act is a strict liability statute, and it

requires operators to comply with the Secretary’s safety and health standards. Cf. Rock of Ages

Corp., 20 FMSHRC 113–14 (Feb. 1998) (stating that the Mine Act imposes strict liability and

refusing to insert an unwritten element into the text of a regulation). Moreover, the Secretary

argues that Respondent misinterprets the phrase “immediately after installation” in 30 C.F.R. 

§ 56.12028 by reading it narrowly to mean “immediately after installation of the grounding rod.” 

(Sec’y Post-Trial Br. at 8.) Instead, the Secretary claims that “installation” refers to installation

of the equipment, rather than the grounding rod. (Id.) In addition, the Secretary asks that I defer

to his interpretation of the regulation. (Id. at 9.) 

36 FMSHRC Page 2271
a. Ambiguity of the Phrase “Immediately After Installation”

As explained above, the parties interpret the phrase “immediately after installation”

differently. Neither the Mine Act nor the regulation provides a definition for the phrase. 

Looking at the text of the regulation and the parties’ alternative interpretations, I conclude that it

is in some respects ambiguous. Island Creek Coal Co., 20 FMSHRC 14 (Jan. 1998) (citing

National R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 418-19 (1992)); Norman

J. Singer, Sutherland Statutory Construction § 45.02, at 6 (5th ed. 1992) (“Ambiguity exists

when a statute is capable of being understood by reasonably well-informed persons in two or

more different senses.”). As the Supreme Court stated in Boston & Maine, “[f]ew phrases in a

complex scheme of regulation are so clear as to be beyond the need for interpretation when

applied in a real context.” 503 U.S. at 418. 

b. Reasonableness of Secretary’s Interpretation

Given my conclusion that the phrase “immediately after installation” is ambiguous as

applied to the installation of a grounding rod on a power generator, I must decide whether the

Secretary’s interpretation of the provision is reasonable. The Secretary’s interpretation of a

regulation is reasonable where it is “logically consistent with the language of the regulation[s]

and . . . serves a permissible regulatory function.” Gen. Electric Co. v. EPA, 53 F.3d 1324, 1327

(D.C. Cir. 1995) (citing Rollins Envtl. Servs., Inc. v. EPA, 937 F.2d 649, 652 (D.C. Cir.1991)). 

Moreover, a policy favoring deference is particularly important where, as here, a technically

complex statutory scheme is backed by an even more complex and comprehensive set of

regulations. Id. Under such circumstances, “the arguments for deference to administrative

expertise are at their strongest.” Gen. Electric Co., 53 F.3d at 1327 (citing Psychiatric Inst. of

Washington, D.C. v. Schweiker, 669 F.2d 812, 813–14 (D.C. Cir.1981)); see also Chevron,

U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 865 (1984) (finding that the

Administrator’s interpretation represented a reasonable accommodation of manifestly competing

interests and was entitled to deference because the regulatory scheme was technical and

complex, the agency considered the matter in a detailed and reasoned fashion, and the decision

involved reconciling conflicting policies.). 

The Secretary interprets “immediately after installation” in section 56.12028 to mean

immediately after the installation of the equipment that needs to be grounded. (Sec’y Post-Trial

Br. at 8.) This interpretation focuses on the purpose of the regulation, which is to ensure that

regular testing prevents fatalities and other injuries. See IV MSHA, U.S. Dep’t of Labor,

Program Policy Manual, Part 21, at 44 (2003) (“PPM”) (“The intent of this standard is to ensure

that continuity and resistance tests of grounding systems are conducted on a specific schedule.

[N]umerous fatalities and injuries have occurred due to high resistance or lack of continuity in

the equipment grounding systems. These accidents could have been prevented by proper testing

and maintenance of grounding systems.”) (emphasis added); see also 30 C.F.R. § 56.1 (“This

part 56 sets forth mandatory safety and health standards for each surface metal or nonmetal

mine, including open pit mines, subject to the Federal Mine Safety and Health Act of 1977. The

purpose of these standards is the protection of life, the promotion of health and safety, and the

prevention of accidents.”). Testing “will alert the operator if a problem exists in the grounding

system, which may not allow the circuit protective devices to quickly operate when faults

36 FMSHRC Page 2272
occur.” IV MSHA, U.S. Dep’t of Labor, Program Policy Manual, Part 21, at 44 (2003). The

Secretary’s interpretation does not deviate significantly from the language of the regulation. 

Furthermore, this interpretation is consistent with the purpose of the regulation reflected in

MSHA’s PPM for 30 C.F.R. § 56.12028. As I noted, the preservation of safety is at the core of

the regulation’s purpose. Testing the grounding system immediately upon installation of the

equipment provides greater miner safety because it ensures the grounding rod and other elements

of the grounding system are employed and tested. This provides the intended protection,

especially if the generator is later energized. In contrast, allowing the generator to be installed

without immediately testing the grounding system, as RECON suggests, provides less safety for

miners from accidental electrocution. Thus, the Secretary’s interpretation serves a permissible

regulatory function. Accordingly, I conclude that the Secretary’s interpretation is reasonable

and, thus, entitled to deference.

c. Violation

Respondent admits that it did not perform continuity and resistance testing on the power

generator. (Resp’t Reply to Sec’y Post-Trial Br. at 2.) Therefore, I conclude that RECON

violated 30 C.F.R. § 56.12028. 

d. S&S

RECON’s violation of 30 C.F.R. § 56.12028 establishes the first element for an S&S

violation under the Mathies test. The second element of the Mathies test asks whether the

violation contributed to a discrete safety hazard. Here, Inspector Vidal testified that the power

generator’s lack of a grounding rod exposed anyone who came into contact with the generator to

approximately 240 volts of electricity (Tr. 23:24–24:4) and that miners could come in direct

contact with the generator. (Tr. 24:21; 25–2.) Vidal has significant experience inspecting mines

(Tr. 17:17–25), and I accord his experience great weight. Accordingly, I determine that the

violation contributed to the discrete safety hazard of electric shock. The Secretary has therefore

met his burden of proof on the second element of Mathies. 

The third and fourth elements of Mathies ask whether the safety hazard is reasonably

likely to contribute to a reasonably serious injury. Here, Inspector Vidal testified that 240-volt

electrocution would likely be fatal. (Tr. 25:14–17.) Given Vidal’s credible testimony, I

determine that the Secretary has satisfied his burden of proving that reasonably serious injuries

were reasonably likely to occur. Thus, the Secretary has satisfied Mathies’ third and fourth

elements.

Based on my above determinations, I conclude that RECON violated section 56.12028,

that the violation was S&S, and that it was the result of RECON’s moderate negligence.

36 FMSHRC Page 2273
4

 Section 56.12004 provides: “Electrical conductors shall be of a sufficient size and

current-carrying capacity to ensure that a rise in temperature resulting from normal operations

will not damage the insulating materials. Electrical conductors exposed to mechanical damage

shall be protected.” 30 C.F.R. § 56.12004.

3. Citation No. 6453945 – The Gang Box

Section 56.12004 requires operators to protect electrical conductors that are exposed to

mechanical damage.4 30 C.F.R. § 56.12004. An operator violates section 56.12004 when

exposed cable or wiring that is capable of carrying an electrical current, thus creating a shock

hazard, lacks an outer protective jacket or structure of some sort. See Northshore Mining Co., 

35 FMSHRC 1889, 1893 (June 2013) (ALJ); Baker Rock Crushing Co., 32 FMSHRC 968, 977

(Aug. 2010) (ALJ).

a. Additional Findings of Fact

Inspector Vidal issued Citation No. 6453945 because 13 damaged electrical extension

cords with compromised outer protective coverings and exposed bare wiring were left in a gang

box and available for use by miners. Specifically, Vidal testified that an unidentified employee

told him that the gang box was unlocked and accessible by any miner. (Tr. 43:22–44:9.) 

Inspector Vidal also stated that two of the cords had completely exposed bare wiring, potentially

exposing miners to 110 volts of electricity. (Tr. 49:6–12.) He indicated that the injuries

resulting from 110-volt electrocution could range from a fatality to lost work days and restricted

duty. (Tr. 49:18–22.) 

Respondent does not dispute the condition of the cords; indeed, RECON’s Cost Controls

Manager, Benjamin Allen, admitted that at least some of the contents of the box were intended

for use by miners (Tr. 112:21–113:1), and that the cords inside the box were unsuitable for use. 

(Tr. 116:4–8.) Instead, RECON alleges that the gang box was locked and, thus, the cords were

unavailable for use. (Resp’t Reply to Sec’y Post-Trial Br. at 3.) Specifically, Allen testified that

the box was usually locked and was only unlocked for the inspection. (Tr. 113:3–114:3.) Allen

also stated that there was only one key to the gang box and it was kept in a separate office. (Tr.

114:4–5.) Finally, Allen testified that equipment from the gang box had to be distributed to the

miners by a supervisor per RECON’s safety manual, which they provided as evidence. 

(Tr. 114:20–24; 115:14–16; Ex. R–2.)

I do not find Allen’s testimony regarding the locked gang box persuasive for three

reasons. First, operators are not given advance notice of MSHA inspections; it is unlikely that

the box was unlocked in anticipation of Inspector Vidal’s visit. Second, Respondent presented

no evidence at the hearing indicating that Vidal “ordered all locked receptacles on site to be

opened for his inspection,” as it alleges in its reply brief (Resp’t Reply to Sec’y Post-Trial Br. 

at 3.) Finally, Allen is RECON’s Cost Controls Manager. (Tr. 110:21–22.) Allen did not

explain how his duties as a cost control manager provided a basis for explaining the actual dayto-day operations of the rank-and-file miner. On the other hand, an actual miner told Inspector

36 FMSHRC Page 2274
Vidal that the gang box was openly accessible by miners and that miners could use the

equipment within as needed. (Tr. 42:15–24.) Therefore, I find that the gang box was unlocked

and the items inside, including the extension cords, were accessible by any miner. 

Inspector Vidal observed that 11 of the 13 extension cords had missing or damaged outer

protective jackets (Tr. 47:16–19) and the remaining two were so damaged that bare wiring was

visible. (Tr. 46:10–11.) Moreover, Vidal explained that, even with the bare wiring exposed, the

extension cords were still capable of carrying a current. (Tr. 47:5–8.) Based on the evidence

before me, I find that the 13 damaged extension cords were still functional and capable of

carrying an electrical current.

b. Violation

Respondent does not dispute that the outer protective jackets of the extension cords were

damaged thus exposing the bare wiring. Given my finding that the cords were available for use,

I conclude that RECON violated 30 C.F.R. § 56.12004 because the extension cords in the gang

box were capable of carrying an electrical current and left with damaged or missing protective

coverings.

c. S&S

RECON’s violation of section 56.12004 establishes the first element for an S&S

violation under the Mathies test. As for the second Mathies element, Inspector Vidal credibly

testified that the bare wiring on the extension cords exposed the miners to a safety hazard of 110-

volt electric shock. (Tr. 46:7–11; 49:4–17.) As I have noted, I accord great weight Vidal’s

testimony based on his significant experience as an inspector. I therefore determine that the

violation contributed to a discrete safety hazard of 110-volt electric shock. Thus, the Secretary

has met his burden of proof on Mathies’ second element. 

Regarding the third and fourth elements of Mathies, Inspector Vidal credibly testified

that the result of 110-volt electric shock would likely range from lost workdays to death. (Tr.

49:18–22.) I find his testimony regarding the electric shock hazard posed by the damaged

extension cords credible and persuasive. Therefore, I determine that the Secretary has satisfied

his burden of proving that reasonably serious injuries were reasonably likely to occur, and thus

has satisfied the third and fourth elements of Mathies.

d. Negligence

Vidal designated RECON’s negligence regarding this violation as “moderate” because

the company is responsible for ensuring that any equipment that it brings on-site for use is

checked daily. (Tr. 50:4–6.) Allen testified that, at some point, the gang box and access to the

sole key was restricted. (Tr. 114:1–6.) Although RECON’s written safety policy was not

followed here, I note that RECON’s safety manual requires that equipment such as the extension

cords in the gang box be issued from a designated tool room attendant or supervisor. (Tr.

115:10–16; 

36 FMSHRC Page 2275
Ex. R–2.) That policy somewhat mitigates RECON’s negligence in this case. Thus, I agree with

Inspector Vidal’s determination that Respondent’s negligence is properly designated as

moderate.

Based on the above determinations, I conclude that RECON violated § 56.12004, that the

violation was S&S, and that it was the result of RECON’s moderate negligence.

4. Citation No. 6453946 –The Ground Prongs

Inspector Vidal issued Citation No. 6453946 because five cords in the same gang box had

damaged or missing ground prongs. Moreover, a GFCI which is used to prevent electrocution

was also damaged. 

a. Evidentiary Weight of The 2008 National Electrical Code

At trial, and without prior notice to the Secretary, Respondent introduced evidence

regarding the 2008 version of the National Electrical Code (“the Code”)—a 600-page document. 

(Tr. 121:25–122:1.) Respondent admitted that it did not prepare this aspect of the hearing until a

day prior. (Tr. 122:25–123:3.) RECON’s Corporate Health and Safety and Environmental

Manager, Gregory Howearth, testified that some unidentified “MSHA documents” referenced

the code. (Tr. 121:25–122:1.) Respondent contends that it is not a hazard to use GFCIs in

conjunction with extension cords. (Resp’t Reply to Sec’y Post-Trial Br. at 3.) Further,

Respondent claims that the Code supports its position. Id.

Respondent’s eleventh hour introduction of the Code left the Secretary unable to

adequately cross-examine Howearth on the document. At the hearing I had no reason to believe

Respondent’s action was anything more than a mere oversight, so I admitted the Code into

evidence. (Tr. 123:22–24.) Regardless, I do not find Respondent’s position on the Code

persuasive. Respondent never identified the MSHA documents that purportedly reference the

Code either at the hearing or in its post-hearing brief, and neither did Respondent establish their

significance. Indeed, a miner using a damaged GFCI with a cord that has no grounding would

be exposed to the hazard of electrocution. Therefore, I conclude that Howearth’s testimony

regarding the 2008 version of the National Electrical Code is irrelevant to 30 C.F.R. § 56.12025.

b. Violation

Section 56.12025 states that “[a]ll metal enclosing or encasing electrical circuits shall be

grounded or provided with equivalent protection.” 30 C.F.R. § 56.12025. As I found above, the

damaged extension cords in the gang box were capable of carrying an electrical current and left

unprotected and accessible by miners. Therefore, I conclude that RECON violated 30 C.F.R. 

§ 56.12025. 

c. S&S

Respondent’s violation of 30 C.F.R. § 56.12025 establishes the first element of the

Mathies test. As for the second element, Vidal credibly testified that the use of an extension

36 FMSHRC Page 2276
cord without a ground prong exposed miners to the safety hazard of electric shock. (Tr.

54:8–15.) In concluding that leaving extension cords with damaged or missing ground prongs

available to miners constituted a violation, I have determined that a reasonably prudent person

would recognize that allowing miners to use such damaged cords constituted a defect in safety. 

Likewise, I determine that the violation contributed to a discrete safety hazard of electric shock. 

Therefore, the Secretary has met his burden of proof on Mathies’ second element. 

The third and fourth elements of Mathies ask whether the safety hazard is reasonably

likely to contribute to a reasonably serious injury. The Secretary claims that injuries in this case

are reasonably likely to result in lost workdays or restricted duty. (Ex. G–11.) Noting that these

cords would likely carry 110 volts of electricity, Vidal described the potential injuries as a burn

hazard, and heart defibrillation that could put a miner in the hospital. (Tr. 57:4–13.) Vidal

determined this would reasonably likely result in lost workdays or restricted duty. As I noted,

Inspector Vidal has significant experience inspecting mines. (Tr. 17:17–25.) Accordingly, given

Vidal’s significant experience as an inspector, I give his testimony great weight and determine

that the Secretary has satisfied his burden of proving that reasonably serious injuries were

reasonably likely to occur, and has thus satisfied Mathies’ third and fourth elements.

d. Negligence

Vidal designated RECON’s negligence regarding this violation as “moderate” due to the

company’s obligation to ensure that any equipment it brings on-site for use is checked daily. 

(Tr. 50:4–6.) Allen testified that he believed access to the gang box was restricted at some point.

(Tr. 114:1–6.) Moreover, RECON, through its safety manual, had contemplated procedures to

monitor distribution of the equipment. (Tr. 115:10–16; Ex. R–2.) I find these factors to be

somewhat mitigating and, thus, I agree with Vidal’s determination that Respondent’s negligence

is properly designated as moderate.

B. Citation No. 6454808 – Workplace Examination Violation

1. Parties’ Arguments

The Secretary argues that the text of Inspector Griffith’s citation itself, as well as his

notes, establish a facial violation of 30 C.F.R. § 56.18002(a). (Sec’y Post-Trial Br. at 19.) 

Specifically, the Secretary points out that Citation No. 6454808 and Griffith’s notes mention that

the alleged failure to perform and document a workplace examination contributed to the issuance

of three S&S violations during the same inspection. (Id.) Although counsel for the Secretary

acknowledges that the Secretary has the burden of proof, counsel nevertheless highlights

Respondent’s failure to introduce any evidence regarding this citation. (Id.)

In contrast, Respondent argues that the Secretary has failed to meet his burden of proof

regarding this citation. (Resp’t Reply to Sec’y Post-Trial Br. at 4.) Respondent further argues

that RECON has no obligation to present evidence given its position that the Secretary failed to

meet his burden of proof. (Id.)

36 FMSHRC Page 2277
2. Analysis and Conclusions of Law

To establish the violation alleged in Citation No. 6454808, the Secretary must meet his

burden of proof, which is by a preponderance of the evidence. To meet his burden of proof, the

Secretary must demonstrate that “the existence of a fact is more probable than its non-existence.” 

RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000) (citations omitted). Put

simply, “the evidence must be sufficient to convince the trier of fact that the proposition asserted

is more likely true than not true.” Keystone Coal Mining Corp., 16 FMSHRC 857,896 (1994)

(ALJ). Here, the Secretary presented only copies of Inspector Griffith’s citation and notes. Yet,

in his prehearing report, the Secretary stated that he would call Inspector Griffith to testify

regarding this citation. (Sec’y Preh’g Statement at 8.) Thereafter, at the hearing, the Secretary

indicated that a MSHA field office supervisor was supposed to testify regarding Citation No.

654808 but fell ill. (Tr. 14:14–17.) The Secretary could have asked for a continuance or, at a

minimum, asked that the record be left open to introduce later deposition testimony from the

then-ill MSHA supervisor. The Secretary pursued none of these options.

Instead, the Secretary chose to move forward with the hearing and circumvent the

deficiencies in his presentation by attempting to introduce Inspector Griffith’s citation under the

business records exception to hearsay evidence through the testimony of Inspector Vidal, who

could provide no information on Citation No. 6454808 itself. (Tr. 14:12–20.) The Secretary’s

attempt to use the business records exception is a red herring. It is a basic principle of

administrative law that hearsay is admissible in federal and state administrative hearings. See

Richardson v. Perales, 402 U.S. 389 (1971). Moreover, Commission Procedural Rule 63(a)

specifically permits hearsay evidence in Commission proceedings. 29 C.F.R. § 2700.63(a).

I understand why the Secretary wants to introduce the citation into evidence under the

business records exception to hearsay evidence, as I may then conclude that the text contained in

the citation is somehow more reliable and should be taken at face value. However, Inspector

Vidal did not issue Citation No. 6454808, did not speak to Inspector Griffith about this citation,

and was not at Drake Quarry on the date the citation was issued. Moreover, it was not his job to

be the custodian of records. The Secretary’s attempt to introduce the citation as a business

record is unconvincing and inapposite. Nevertheless, the Commission’s Procedural Rules allow

for the introduction of hearsay evidence, and I duly admitted the citation and notes at the

hearing. Their admission, however, does not determine the weight I give such evidence. 

Indeed, the Secretary hopes to buttress his case by using the business records exception

to the hearsay rule. Yet, in the end, it is still hearsay. With no foundation for the documents and

no testimony to support the allegations and determinations contained in Citation No. 654808, I

am left with little more than bald allegations to consider. In fact, I know nothing about the

inspector who issued this citation or his qualifications, and nothing was admitted at hearing as

evidence, such as an affidavit or deposition testimony, regarding Inspector Griffith or the

issuance of this citation. As the Secretary well knows, MSHA vacates citations from time to

time based on its view that the inspector erred in issuing a citation or in finding a violation, and

Commission Judges have done the same. Without testimony from an inspector or witness who

can substantiate the claims made in this citation, I have no way of determining the veracity of the

36 FMSHRC Page 2278
charges contained in the citation. Thus, I am precluded from making any credibility

determinations. 

In my view, what the Secretary asks me to do here offends the basic tenets of due

process. Moreover, it offends basic concepts of fairness, inasmuch as the operator cannot crossexamine a sheet of paper. The Secretary’s attempt to find fault with Respondent’s refusal to put

on a case against this citation is also dubious. It is a failed attempt to draw attention away from

the deficiencies in the Secretary’s own case. All the Secretary has here is hearsay evidence,

which I do not credit given the circumstances described and which I determine is insufficient to

carry the Secretary’s burden of proof. Consequently, I vacate Citation No. 654808.

VI. CIVIL PENALTIES

Under section 110(i) of the Mine Act, the Administrative Law Judge must consider six

criteria in assessing a civil penalty: (1) the operator’s history of previous violations; (2) the

appropriateness of the penalty relative to the size of the operator’s business; (3) the operator’s

negligence; (4) the penalty’s effect on the operator’s ability to continue in business; (5) the

violation’s gravity; and (6) the demonstrated good faith of the operator in attempting to achieve

rapid compliance after notification of a violation. 30 U.S.C. § 820(i). 

Prior to the violations at issue, RECON has had no recorded history of violations. 

(Ex. G–1.) Of the five citations before me, I affirmed all but Citation No. 6454808. The

Secretary has proposed a penalty of $2,272.00 for the remaining four citations. Nothing in the

record suggests that this penalty is inappropriate for the size of RECON’s business or that it

would infringe on RECON’s ability to remain in business. Moreover, after these citations were

issued, nothing suggests that RECON failed to make a good faith effort to achieve rapid

compliance with the safety standards. RECON was moderately negligent in all four violations,

and each affirmed violation exposed miners to a reasonable risk of fatal injuries. In considering

all of the facts and circumstances of this matter, I hereby assess a civil penalty of $2,272.00.

VII. ORDER

In light of the foregoing, it is hereby ORDERED that Citation Nos. 6453940, 6453941,

6453945, and 6453946 are AFFIRMED. It is further ORDERED that Citation No. 6454808 is

VACATED.

WHEREFORE, Respondent is ORDERED to pay a penalty of $2,272.00 within 40 days

of this decision.

/s/ Alan G. Paez

Alan G. Paez

Administrative Law Judge

36 FMSHRC Page 2279
Distribution: 

Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department of Labor,1999 Broadway,

Suite 1600, Denver, CO 80202-5708

Eugene F. McMenamin, Esq., Atkinson, Andelson, Loya, Ruud & Romo, 12800 Center Court

Drive, Suite 300, Cerritos, CA 90703-9364

/bm

36 FMSHRC Page 2280
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9900 / FAX: 202-434-9949

August 29, 2014

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA), 

 Petitioner,

v. 

UEHLIN QUARRY, 

 Respondent.

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CIVIL PENALTY PROCEEDINGS

Docket No. CENT 2011-1129-M

A.C. No. 23-02237-262205-01

Docket No. CENT 2011-1130-M

A.C. No. 23-02237-262205-02

Docket No. CENT 2011-1131-M

A.C. No. 23-02237-262205-03

Docket No. CENT 2012-0307-M

A.C. No. 23-02237-276686

Mine: Uehlin Underground

DECISION

Appearances: Amanda K. Slater, Office of the Solicitor, U.S. Department of Labor,

Denver, CO, for Petitioner;

Stephen Uehlin and John Uehlin (unrepresented), for Respondent.

Before: L. Zane Gill, U.S. Administrative Law Judge

 These cases arise from a petition for assessment of civil penalty filed by the Secretary of

Labor, acting through the Mine Safety and Health Administration, against Uehlin Quarry at its

stationary rock crushing plant near Amazonia, MO, pursuant to sections 105 and 110 of the

Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act” or

“Act”) They comprise eight violations (six citations and two orders) distributed among the four

captioned dockets, and the Secretary proposed a total penalty of $12,269.00. The parties

presented testimony and documentary evidence at a hearing held in Kansas City, MO,

commencing on December 11, 2012.

Procedural History

On oral motion made at the hearing, and with the consent of the respondents, Docket

CENT 2012-0307, consisting of Citation No. 8619342, was consolidated for hearing with the

other dockets listed above. (Tr. 7:11-8:1) Docket CENT 2011-1129 consists of Citation No.

36 FMSHRC Page 2281
1

 A truck driver is considered a “miner” for purposes of this decision. 30 CFR

§48.22(a)(1) See, Sec of Labor (MSHA) v. Lehigh Southwest Cement, 2011 WL 7463296

(FMSHRC) ( Dec. 2011) (ALJ Paez).

8619348, CENT 2011-1130 covers Citation Nos. 8619345 and 8619343, and CENT 2011-1131

comprises Citation Nos. 8619344, 8619346, and 8619347. 

Stipulations

 Uehlin Quarry, (“Uehlin Quarry” or “Uehlin”) operates a stationary surface rock

crushing facility (the “quarry”) near Amazonia, MO. (Tr. 28:22-29:3) The quarry is subject to

regular inspections by the Secretary’s Mine Safety and Health Administration (“MSHA”)

pursuant to section 103(a) of the Act and spot inspections, 30 U.S.C. § 813(a). Uehlin Quarry is

the operator of the quarry (Response to Request for Admission, No. 8), the quarry’s operations

affect interstate commerce (Response to Request for Admission, No. 9), and it is subject to the

jurisdiction of the Mine Act. (Tr. 8:1-9:1; Response to Request for Admission, No. 6) The

Administrative Law Judge has jurisdiction over these proceedings, pursuant to Section 105 of the

Mine Act. (Uehlin Quarry’s Responses to the Secretary’s First Interrogatories, Response to

Request for Admission, No. 7) Uehlin Quarry, is a small, family owned, managed, and operated

enterprise. 

Introduction

On June 9, 2011, Ronald C. Buckler (“Buckler” or “victim”), a truck driver1 working on

one of Uehlin’s rock crushers, was grievously injured when the heavy steel pry rod he was using

to dislodge rocks jammed inside the feeder port to the crusher’s impeller unit was thrown back at

him, causing severe lacerations to the right side of his neck, fracturing his cervical spine (Ex. S2), and resulting in permanent paralysis. (Ex. S-24; Tr. 36: 24-37:14) 

Uehlin did not contact MSHA within 15 minutes. John Uehlin decided that it was more

important to attend to the victim’s care and to assure that emergency responders could quickly be

directed to the quarry site than to task anyone doing one of those two things to make the call to

MSHA. (Tr. 188:17-21; 219:3-17) 

The Citations and Orders

Inspector Dale Coleman (“Inspector Coleman” or “Coleman”) is an MSHA Health and

Safety Inspector based in the Rolla North, Missouri field office. (Tr. 25:9-12) He was assigned

to travel to the scene of the accident to conduct an investigation. Some of the citations and

orders were issued as part of his investigation into the accident and injury to the victim and the

rest were issued for alleged violations observed during the course of the accident investigation –

the “spot” investigation. (Tr. 67:21-69:2)

36 FMSHRC Page 2282
2

 The 103k order does not give rise to a penalty or other enforcement consequences.

3

 Coleman described this citation a “paperwork violation.” (Tr. 156:6-8)

• Order No. 8619341 (Ex. S-1, the “103k order” or “k order”) was issued under the

authority of Section 103(k) of the Mine Act to preserve the accident scene to facilitate

investigation of the accident.2 (Tr. 50:18-51:8)

• Citation No. 8619342 (Ex. S-3; Docket CENT 2012-0307) alleges a 104(d)(1) violation

of 30 CFR § 57.14105, which regulates procedures during repairs or maintenance and

requires that before any repair or maintenance is done on machinery or equipment, the

equipment must be powered off and blocked against hazardous motion. (Tr. 68:11-69:2)

This citation is characterized as reasonably likely to be fatal, potentially affecting a single

miner, significant and substantial (“S&S”), arising from high negligence, and constituting

an unwarrantable failure to comply with a mandatory health or safety standard

(“unwarrantable failure”).

• Citation No. 8619343 (Ex. S-4; Docket CENT 2011-1130) alleges a violation of 30 CFR

§ 57.15005, which requires that safety belts and lines be worn where there is a fall

danger. (Tr. 114:6-115:6) This citation is characterized as reasonably likely to be fatal,

potentially affecting a single miner, S&S, arising from high negligence, and constituting

an unwarrantable failure. 

• Citation No. 8619344 (Ex. S-6; Docket CENT 2011-1131) alleges a violation of 30 CFR

§ 57.14107(a), which requires that moving machine parts such as gears, sprockets,

chains, pulleys, etc., be guarded to prevent contact. (Tr. 124:25-125:13) This citation is

characterized as reasonably likely to result in permanent disability, potentially affecting a

single miner, S&S, and arising from high negligence. 

• Order No. 8619345 (Ex. S-9; Docket CENT 2011-1130) alleges a 104(d)(1) violation of

30 CFR § 57.11012, which requires railings, barriers, or covers to protect any opening

near a travelway through which a person or material could fall. (Tr. 131:22-132:6) This

order is characterized as reasonably likely to be permanently disabling, potentially

affecting a single miner, S&S, arising from high negligence, and constituting an

unwarrantable failure.

• Citation No. 8619346 (Ex. S-11; Docket CENT 2011-1131) alleges a violation of 30

CFR § 57.12016, which requires that powered equipment be powered off and locked and

tagged out before any mechanical work is done on it. (Tr. 140:8-25) This citation is

characterized as reasonably likely to be fatal, potentially affecting a single miner, S&S,

and arising from high negligence.

• Citation No. 8619347 (Ex. S-13; Docket CENT 2011-1131) alleges a violation of 30

CFR § 48.29, which requires that a mine operator keep a copy of form 5000-23 for each

miner on file for examination, showing that the miner has received MSHA training. (Tr.

148:20-149:3) This citation is characterized as having no likelihood of causing injury3

,

but arising from high negligence.

• Citation No. 8619348 (Ex. S-14; Docket CENT 2011-1129) alleges a violation of 30

CFR § 50.10(b) which requires that a mine operator notify MSHA within 15 minutes of

an injury at a mine site which has a reasonable potential to cause death. (Tr. 153:4-10)

36 FMSHRC Page 2283
4

 Steve Uehlin was on site but not at the immediate scene of the accident when it

happened. (Tr. 45:12-20) 

5

 Mike Raines, a truck driver, was standing next to Buckler in the primary crusher

hopper. (Tr. 55:8-5) 

6

 When the accident occurred, John Uehlin was standing on a catwalk above the feeder

hopper. (Tr. 198:3-20; 213:6-15)

7

 The impeller was left running as the miners cleared the jam, according to Mike Raines,

because if they shut it off it might choke the crusher itself and it would not start. (Tr. 61:25-62:6) 

A curtain of heavy chain hung at the entry to the crusher intake intended to keep rocks from

being flung out of the crusher impeller. (Tr. 207:16-208:9) It is not certain whether the chains

were in place on the day of the accident or had been thrown up on the intake and out of the way.

(Tr. 167:13-168:6; 208:10-17)

8

 It is disputed whether one or more of the miners were standing on the cross beam as

they worked with pry bars to clear the rock jam in the crusher impeller. In light of the totality of

the evidence, it is of little additional import whether they were or not. (Tr. 66:8-10; 108:20-

109:5; 109:20-110:22; 112:2-24; 205:5-22)

This citation is also characterized as having no likelihood of causing injury (“paperwork

violation”), but arising from high negligence. 

Summary of Events

On June 10, 2011, John Uehlin – co-owner,4 operator, and manager of Uehlin quarry (Tr.

36:7-10; Response to Request for Admission, No. 11.3) – and three miners,5 including Buckler,

were working to clear rock jams in the vibrating hopper that feeds one of the rock crushers on

the Uehlin quarry site. (Tr. 40:22-41:4; 159:23-160:3; Response to Request for Admission, No.

11.4) At various times, John Uehlin6 and the miners stood inside the slant-walled hopper as they

worked with pry bars and other tools to free up rocks that got hung up at the opening from the

hopper into the crusher impeller. (Tr. 21:4-9; 197:22-198:1; 211:24-212:9) The hopper dumped

rock into the impeller unit that fed it into the crusher itself, located some 12 feet away. (Tr.

23:17-24:1) The vibrator unit at the bottom of the feeder hopper was turned off, but the crusher

and the impeller were left running. (Tr. 20:10-14; 55:24-56:13; 57:17-20; 204:3-21)7

 The

impeller is the part that feeds rock into the crusher breaker bars where it is crushed. It spins at

500 rpm. (Tr. 56:19-57:10)

A waist-high support or barrier beam stretched across the nine foot width of the hopper

(Tr. 58:11-15), a few feet away from the impeller intake opening. Its purpose was to keep

miners working in the hopper from falling toward the crusher intake. (Tr. 212:13-24) The men

stood behind the beam and leaned against it as they worked with their pry bars and other tools to

free up the rock that periodically hung up in the impeller intake opening. (Tr. 40:22-41; 213:1-

5)8

36 FMSHRC Page 2284
At approximately noon on June 10, 2011, Buckler was nearly killed when the eight foot

long steel pry bar he was using to dislodge jammed rocks (Tr. 41:11-17; 58:16-60:8) either came

in contact with the running impeller unit or was propelled back by a rock that had been thrown

out of the impeller. (Ex. S-19, p.3; Tr. 42:6-24; 46:21-47:4; 168:21-169:7) The bar hit Buckler

on the right side of his neck and caused the injuries summarized above.

The men on the scene recognized that Buckler was not conscious or breathing and started

administering CPR and first aid. (Ex. S-24, p. 3; Tr. 36:24-37:14; 47:5-13; 103:11-24) Buckler

revived to the point where they could tell that he was unable to move or speak. (Tr .98:15-16) 

They were able to communicate with him by asking questions to which he responded by blinking

his eyes. (Tr. 36:24-37:14)

Casey Uehlin, John Uehlin’s daughter and scale house employee (Tr. 46:6-8; 218:20-22),

called 911. (Tr. 218:9-16) She did not know that she had to call MSHA within 15 minutes. (Tr.

220:12-18) There were emergency procedures posted in the scale house, but Casey did not know

about them. (Tr. 219:22-220:4) There was nothing posted in the scale house about the 15 minute

rule. (Tr. 220:6-11) John Uehlin was aware that someone was obligated to call the accident in to

MSHA within 15 minutes, but he made the deliberate decision not to make the call immediately

in order to focus all resources on caring for Buckler until the emergency responders arrived and

to make sure that they did not get lost on the way to the scene. (Tr. 219:3-17) Stephen Uehlin

directed the EMT’s from the highway to the accident scene. (Tr. 105:19-106:2) Casey stayed in

the scale house to handle the phones during the response to the accident. (Tr. 218:23-219:1) 

There was no one else, management or other, who was not in some way either attending directly

to Buckler or directing traffic or manning the phones. 

The accident report later filed by John Uehlin shows the time of the accident as 12:00

pm. (Ex. S-23) The EMT report estimates the time of accident as12:15 pm and shows that the

911 call was received at 12:19 pm. The ambulance arrived at the scene at 12:31 pm. (Ex. S-24;

Tr. 96:11-22) Buckler was put on a stretcher at 12:55 pm. (Tr. 113:7-13) Stephen Uehlin called

MSHA to report the accident at 12:58 pm. (Ex. S-15; Tr. 155:23-156:8; 217:24-218:8) Buckler

was loaded onto a life-flight helicopter at 1:05 pm. (Tr. 104:7-105:10)

Inspector Coleman was assigned to investigate the accident. (Tr. 25:3-15; 30:16-23) It

was his first accident investigation. (Tr. 169:23-25) He arrived at the scene on June 10, 2011,

the day after the accident. (Tr. 34:9-17) He viewed the scene and took evidence photos. (Tr.

31:25-32:18; 38:12-18; 44:12-45:8) No one was available for interviews, so Coleman returned

to the quarry on June 14, 2011, to interview witnesses, including Matt Foster and Mike Raines. 

(Tr. 54:12-55:7) 

36 FMSHRC Page 2285
9

 The Uehlin brothers were not represented at the hearing. They were put under oath at

the beginning of the hearing and advised that by doing so, the court could treat anything they

said, be it while questioning witnesses, making objections or arguments, or giving direct

testimony, as competent testimony for evidentiary purposes. (Tr. 19:20-20:7)

Analysis

John and Stephen Uehlin’s defense is based on the following beliefs and facts:9

• Uehlin Quarry is a small, family-owned, -managed, and -operated business with only a

few employees. (Tr. 221:13-222:1; 227:18-228:3)

• The quarry operated only part of the year. It was on “intermittent” status with MSHA at

the time of this incident and was inspected only twice a year. (Tr. 29:6-13)

• The Uehlin brothers operated the quarry in a manner they believed to be consistent with

the way other quarries in their area were operated. (Tr. 20:19-21:1; 23:19-21; 210:9-25)

• The Uehlin brothers worked side-by-side with the miners and did not expect them to do

anything they would not do themselves or in a manner they were not comfortable doing

themselves. (Tr. 21:23-24; 198:3-8; 199:25-200:14; 212:5-9)

• The Uehlin brothers had operated their quarry for many years essentially the same way it

was being operated on the day of the accident and never had a serious accident. (Tr. 21:2-

4; 85:14-18;191:5-12; 199:23-200:14)

• The Uehlin brothers were co-owners and managers of the Uehlin quarry. Both men

supervised miners. (Tr. 221:13-222:2)

• Because the operation was so small, management always knew where everyone was and

what they were doing. (Tr. 229:4-11)

• It was common practice for miners to stand in the hopper as they worked to free up rocks

jammed in the impeller input. (Tr. 198:21-199:22)

• The Uehlins did not consider using a pry bar to free up rock jams in the impeller intake to

be an unsafe practice. (Response to Request for Admission, No. 11.8)

• The miners had been trained to hold the pry bar away from their body as they worked to

free up rock jams in the hopper. (Tr. 57:21-25) According to John Uehlin, if Buckler had

been standing in the right place and using the pry bar as instructed, the bar would have

flown harmlessly past him. 

• Just before the accident, Uehlin reminded Buckler to put his safety glasses on and stand

to the side as he used his pry bar. (Tr. 21:11-22)

• The Uehlins concede that it was a horrible accident, but maintain it was not their fault.

(Tr. 23:17-19)

• Considering the circumstances, John Uehlin decided not to immediately call MSHA to

report the accident. He felt it more important to attend to the victim’s needs. (Tr. 22:11-

23:3; 219:3-17)

• Stephen Uehlin got a recording when he first called the MSHA hotline. He left a

message and got a return call from Robert Silkey. (Tr. 228:18-21; 230:4-20)

• The Uehlin brothers stopped mining activities at this location because, after heavy

rainfall and flooding, the railroad company removed the track crossing used to access the

quarry site, cutting off access to the quarry. The loss of revenue from the quarry and the

36 FMSHRC Page 2286
dispute with the railroad over the crossing depleted their financial resources. (Tr. 201:15-

202:13) Their finances have been impacted by the costs of civil litigation related to this

accident. (Tr. 200:19-201:2) 

• The Uehlin brothers claim that the penalties proposed in this case will affect their ability

to remain in business; however they also claim to be insolvent already. (Response to

Request for Admission, 3.10; Ex. S-29)

Common Legal Standards

Negligence

Section 110(i) of the Mine Act requires that in assessing penalties the Commission must

consider, among other criteria, whether the operator was negligent. 30 U.S.C. § 820(i). Each

mandatory standard carries an accompanying duty of care to avoid violations of the standard. An

operator’s failure to satisfy the appropriate duty can lead to a finding of negligence. In this type

of case, we look to such considerations as the foreseeability of the miner’s conduct, the risks

involved, and the operator’s supervising, training, and disciplining of its employees to prevent

violations of the standard in issue. Southern Ohio Coal Co., 4 FMSHRC at 1463-64. See also

Nacco Mining Co., 3 FMSHRC at 848, 850-51(Apr.1981) (construing the analogous penalty

provision in 1969 Coal Act where a foreman committed a violation), cited in A. H. Smith Stone

Company, 5 FMSHRC 13, (Jan.1983). 

Negligence “is conduct, either by commission or omission, which falls below a standard

of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. §

100.3( d). “A mine operator is required [ ... ] to take steps necessary to correct or prevent

hazardous conditions or practices.” Id. “MSHA considers mitigating circumstances which may

include, but are not limited to, actions taken by the operator to prevent or correct hazardous

conditions or practices.” Id. Reckless negligence is present when “[t]he operator displayed

conduct which exhibits the absence of the slightest degree of care.” Id. High negligence is when

“[t]he operator knew or should have known of the violative condition or practice, and there are

no mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew or should

have known of the violative condition or practice, but there are mitigating circumstances.” Id.

Low negligence is when “[t]he operator knew or should have known of the violative condition or

practice, but there are considerable mitigating circumstances.” Id. No negligence is found when

“[t]he operator exercised diligence and could not have known of the violative condition or

practice.” Id.

Gravity

The gravity penalty criterion under section 110(i) of the Mine Act, 30 U .S.C. § 820(i), is

most often viewed in terms of the seriousness of the violation. Sellersburg Stone Co., 5

FMSHRC 287, 294-95 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny &

Ohio Coal Co., 9 FMSHRC 673, 681 (Apr. 1987). The seriousness of a violation can be

evaluated by comparing the violated standard and the operator's conduct with respect to that

standard in the context of the Mine Act's purpose of limiting violations and protecting the safety

and health of miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990)

36 FMSHRC Page 2287
(ALJ). The Commission has recognized that the determination of the likelihood of injury should

be made assuming continued normal mining operations without abatement of the violation.

Consolidation Coal Co., 8 FMSHRC 890, 899 (June 1986). 

However, the gravity of a violation and its S&S nature are not the same. The

Commission has pointed out that the “focus of the seriousness of the violation is not necessarily

on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather

on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept.

1996). The gravity analysis can include the likelihood of an injury, but should focus more on the

potential severity of an injury, and the number of miners potentially injured. The analysis should

not equate gravity, which is an element that must be assessed in every citation or order, with

“significant and substantial,” which is only relevant in the context of enhanced enforcement

under Section 104( d). See, Quinland Coals Inc., 9 FMSHRC 1614, 1622 n. l (Sept. 1987). 

Enhanced Enforcement - Significant and Substantial and Unwarrantable Failure

It is clear in the Mine Act that because negligence and gravity, which are clearly

delineated in 30 C.F.R. § 100.3 and related tables, apply to all citations and orders, the enhanced

enforcement provisions set out in Section 104(d) contemplate something distinct and more, when

talking about S&S and unwarrantable failure. The Secretary must prove negligence and gravity

for all citations and orders. In order to invoke the enhanced enforcement provisions in Section

104( d), he must also prove that the circumstances of the violation satisfy both the S&S and

unwarrantable failure standards. If the Secretary fails to prove both, there can be no enhanced

enforcement. Thus, the Secretary has to prove four distinct elements when the enhancement

scheme in Section 104(d) is alleged: (1) negligence; (2) gravity; (3) “significant and substantial;”

and (4) “unwarrantable failure.” 

Significant and Substantial

In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Federal Mine Safety and Health

Review Commission ("Commission") explained: 

In order to establish that a violation of a mandatory safety standard is significant

and substantial under National Gypsum, the Secretary of Labor must prove: ( 1)

the underlying violation of a mandatory safety standard; (2) a discrete safety

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

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

(4) a reasonable likelihood that the injury in question will be of a reasonably

serious nature. 

Id. at 3-4. 

In U.S. Steel Mining Co., 7 FMSHRC 1125 (Aug. 1985), the Commission held: 

We have explained further that the third element of the Mathies formula "requires

that the Secretary establish a reasonable likelihood that the hazard contributed to

will result in an event in which there is an injury." [. . .] We have emphasized that,

36 FMSHRC Page 2288
in accordance with the language of section 104( d)( 1 ), it is the contribution of a

violation to the cause and effect of a hazard that must be significant and

substantial." 

Id. at 1129 (emphasis in original) (citations omitted). 

The question of whether a particular violation is significant and substantial must be based

on the particular facts surrounding the violation. See Texasgulf, Inc., 10 FMSHRC 498 (Apr.

1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). S&S enhanced

enforcement is applicable only to violations of mandatory health and safety standards. Cyprus

Emerald Res. Corp. v. FMSHRC, 195 F.3d 42 (D.C. Cir. 1999)

Unwarrantable Failure

The term “unwarrantable failure” comes from section 104(d) of the Act and, taken

together with “significant and substantial,” creates a standard for enhanced enforcement

procedures, including withdrawal orders and potential enhanced liability. 

In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that

the essence of unwarrantable failure is aggravated conduct constituting more than ordinary

negligence. Id. at 2001. Unwarrantable failure has been paraphrased as '”reckless disregard,”

“intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04;

Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991). See also Buck Creek Coal

Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable

failure test). In Gatliff Coal Company, 14 FMSHRC 1982 (Dec. 1993), the Commission drew a

clear contrast between negligence and unwarrantable failure, noting that the difference is not

merely semantic. Consistent with the discussion of enhanced enforcement above, the

Commission stated that an unwarrantable failure may trigger the “increasingly severe

enforcement sanctions of section 104( d) [whereas] [n]egligence [. . .] is one of the criteria that

the Secretary and the Commission must consider in proposing and assessing [. . .] [all] civil

penalt[ies].” Further, “[h]ighly negligent conduct involves more than ordinary negligence and

would appear, on its face, to suggest an unwarrantable failure. Thus, if an operator has acted in a

highly negligent manner with respect to a violation, that suggests an aggravated lack of care that

is more than ordinary negligence.” Id. At 1988-89. 

The Commission has examined various factors to assist in determining whether a

violation is unwarrantable, including the extent of a violative condition, the length of time that it

has existed, whether the violation is obvious, or poses a high degree of danger, whether the

operator has been placed on notice that greater efforts are necessary for compliance, and the

operator’s efforts in abating the violative condition, Mullins & Sons Coal Co., 16 FMSHRC 192,

195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quin/and Coals,

Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984);

Beth Energy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Warren Steen Constr., Inc.,

14 FMSHRC 1125, 1129 (July 1992), and the operator’s knowledge of the existence of the

dangerous condition. e.g., Cyprus Plateau Mining Corp., 16 FMSHRC 1604, 1608 (Aug.1994)

(affirming unwarrantable failure determination where operator aware of brake malfunction failed

to remedy problem); Warren Steen, 14 FMSHRC at 1126-27 (knowledge of hazard and failure to

36 FMSHRC Page 2289
take adequate precautionary measures support unwarrantable determination); see also

Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). What is apparent from the

foregoing list of factors is that they are fact-specific examples of conduct and circumstances

tending to show unwarrantable failure as something more than ordinary negligence and that they

are suggestions only and are not intended to be an exhaustive or exclusive catalog. The essential

aspect of the unwarrantable failure analysis is, and always has been, whether there is aggravated

conduct constituting more than ordinary negligence. Any analysis of unwarrantable failure must

identify the evidence or factors that prove aggravated conduct and discuss them thoroughly. IO

Coal Company, Inc., 31 FMSHRC 1346, 1350-51 (Dec 2009). 

A judge must identify and discuss the factors considered in his unwarrantable failure

analysis and should further discuss how and why the traditional list of factors discussed above

either do or do not bear on the analysis. See Consolidation Coal Co., 22 FMSHRC 340, 353

(Mar. 2000) (“Consol”). The Commission has made clear that it is necessary for a judge to

consider all relevant factors, rather than relying on one to the exclusion of others. Windsor Coal

Co., 21 FMSHRC 997, 1001 (Sept. 1999); San Juan Coal Co., 29 FMSHRC 125, 129-36 (Mar.

2007) (remanding unwarrantable determination for further analysis and findings when judge

failed to analyze all factors). While an administrative law judge may determine, in his

discretion, that some factors are not relevant, or may determine that some factors are much less

important than other factors under the circumstances, all of the factors must be taken into

consideration and at least noted. 

The traditional factors used to determine unwarrantable failure do not lend themselves

well to the facts of this case. For instance, most of them include a temporal element. The extent

of a violative condition can be seen as an expression of how long a condition has existed as well

as how widespread it is. The former formulation duplicates or supplements the inquiry into how

long a violative condition has existed, which is often formulated as a separate factor. Whether

an operator has been actually or constructively placed on notice that a violating condition or

practice exists or that it should be more diligent in its compliance is also largely an expression of

how long the violation has existed. Finally, the operator's effort to abate a violating condition is

most meaningful in light of how long the condition has existed. Unfortunately, these time-based

factors are of little analytical assistance in a situation such as this where the order arises from an

act occurring out by or in the direct presence of an owner/manager of the mine. 

Another complication arises from the overlap between the high-degree-of-danger element

of the traditional unwarrantable failure test and the negligence and gravity elements of the basic,

underlying violation. They can both be proved by facts showing the relative seriousness and

likelihood of an injury causing event. The distinguishing element is the weight given in the

analysis. 

If I were to consider only, or primarily, the traditional elements of the unwarrantable

failure test set out in IO Coal Company, for instance, I might be steered toward the conclusion

that because this was an isolated, ad hoc event, noteworthy primarily because of the potential

severity of consequences from a highly likely event, factors that have been given decisive weight

in my analysis of negligence, gravity, and S&S, it should not be considered an unwarrantable

failure to comply with the relevant safety standard. This would result in a distorted treatment of

36 FMSHRC Page 2290
10 This discussion of a foreman’s heightened duty of care vis-a-vis a subordinate miner is

borrowed liberally from Judge Moran’s excellent summary in Stillhouse Mining, 33 FMSHRC

864, 865-866 (April 2011 ).

this important element of the violation, and points out the need to focus more on the elemental

definition of “unwarrantable failure” than on the traditional factors discussed above. 

However, the Commission has provided guidance for a case which does not lend itself to

a traditional factor-dependent analysis. Sec’y of Labor v. Midwest Material Co.,, involved a

foreman’s actions in an isolated, ad hoc event involving a high degree of danger which resulted

in the death of a miner. 19 FMSHRC 30 (Jan. 1997), 1997 WL 24292. The death occurred

because a foreman was derelict in his supervision of the installation of an extension to a crane

boom. Because the miner performed this operation incorrectly due, at least in part, to the

foreman’s negligence, a section of the boom collapsed on the miner, killing him. In rejecting the

Judge’s conclusion that the violation did not stem from the operator’s unwarrantable failure to

comply with the cited safety standard, the Commission stated: “[t]he [J]udge’s reliance on the

relatively brief duration of the violative conduct was misplaced, in view of the high degree of

danger posed by the hazardous condition and its obvious nature. Given the extreme hazard

created by [the foreman’s] negligent conduct, that misconduct is readily distinguishable from

other types of violations [ ... ] where the degree of danger and the operator’s responsibility for

learning of and addressing the hazard may increase gradually over time.” Id. at 36. The

Commission’s analysis demonstrates that what is important in making an unwarrantable failure

determination is ultimately whether there is evidence of aggravated conduct constituting more

than ordinary negligence, irrespective of how closely the traditional factor-based test tracks the

facts of the case. In fact, a single factor, even one that is not typically encountered, may lead to

the conclusion that a violation resulted from the operator's unwarrantable failure. 

Capitol Cement Corp., 21 FMSHRC 883 (Aug. 1999) is also particularly instructive.

There, a shift supervisor’s failure to de-energize the rail of a crane and to wear a safety belt were

deemed aggravated conduct. The Commission observed that both violations were obvious and

dangerous. Further, the supervisor knew the consequence of his failure to de-energize and that

not wearing a safety belt was dangerous. The Commission noted that “a high standard of care

was required of [the] shift supervisor.” Id. at 894. It then added, “Managers and supervisors in

high positions must set an example for all supervisory and nonsupervisory miners working under

their direction. Such responsibility not only affirms management’s commitment to safety but

also, because of the authority of the manager, discourages other personnel from exercising less

than reasonable care.” Id. at 893 (citing Wilmot Mining, 9 FMSHRC 684, 688) (Apr. 1987). 

The Commission also noted that the supervisor “had been entrusted with augmented safety

responsibility and was obligated to act as a role model for [his] subordinate, who was watching

him.” Id.

10 

Penalty

Commission administrative law judges assess civil penalties de novo for violations of the

Mine Act. Section 110(i) of the Mine Act delegates to the Commission and its judges the

authority to assess all civil penalties provided in [the] Act. 30 U.S.C. § 820(i). The Act

36 FMSHRC Page 2291
delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus,

when an operator notifies the Secretary that it intends to challenge a penalty, the Secretary

petitions the Commission to assess the penalty. 29 C.F.R. § 2700.28. The Act requires the

Commission [ALJ] to consider six statutory penalty criteria in assessing civil monetary penalties:

[1] the operator’s history of previous violations, [2] the

appropriateness of such penalty to the size of the business of the

operator charged, [3] whether the operator was negligent, [4] the

effect on the operator’s ability to continue in business, [5] the

gravity of the violation, and [6] the demonstrated good faith of the

person charged in attempting to achieve rapid compliance after

notification of a violation. 

30 U.S.C. § 820(i). 

 

Judge’s Authority To Increase Penalty

The Commission has explained that “[t]he determination of the amount of the penalty

that should be assessed for a particular violation is an exercise of discretion by the trier of fact.

This discretion is bounded by proper consideration of the statutory criteria and the deterrent

purpose underlying the Act's penalty assessment scheme.” Secretary of Labor v. Mechanicsville

Concrete, Inc. t/a Materials Delivery, 18 FMSHRC 877, 879 (1996) (citing FMC Corporation v.

Sec’y of Labor, et al UMWA, 5 FMSHRC 292, 294). The judge is not bound by the Secretary’s

assessment of the degree of negligence. Modifying a negligence determination is authorized by

the Mine Act. Sec’y of Labor (MSHA) v. Spartan Mining Company, Inc., 2008 WL 4287784

(F.M.S.H.R.C.) at 22. (August 28, 2008)

Operator’s Ability to Continue in Business

The burden is on the company to prove that the assessed penalties would adversely affect

its continuation. “The presumption that unless the company proves otherwise the penalties are

assumed to have no adverse effect is one of the oldest in mine safety law. When a civil penalty

petition is filed and Commission jurisdiction attaches, it becomes the duty of the judge to assess

the penalties de novo based on the statutory penalty criteria.” Georges Collieries v. MSHA, 24

FMSHRC 572, 576 (2002) (citations omitted.) The impact of the proposed penalties on the

company’s ability to continue in business is based on the evidence of record, and the ultimate

amounts assessed by the judge reflect the exercise of his discretion bound by all of the statutory

penalty criteria. If an adverse effect is demonstrated, a reduction in the penalty may be

warranted. However, “the penalties may not be eliminated [. . .], because the Mine Act requires

that a penalty be assessed for each violation.” Spurlock Mining Company Inc., v. Sec’y of Labor

(MSHA), 16 FMSHRC 697, 699 (Apr. 1994), citing 30 U.S.C. § 820(a); Tazco, Inc., 3 FMSHRC

1895, 1897, (1981). 

36 FMSHRC Page 2292
Discussion

In this case, John Uehlin made a conscious and considered decision to lead his miners as

they thrust metal pry bars and sledge hammers into the intake area of the energized and active

crusher impeller unit to clear a rock jam. The risk of a miner getting seriously hurt under these

conditions was obvious, extreme, and easily avoidable. The fact that John Uehlin, an owner and

manager of the company, encouraged his miners to expose themselves to such a risk is remiss,

notwithstanding the misplaced bravado of his claim that he would not expect or allow any of

them to do anything he was not willing to do himself. The fact that he was on the scene and

allowed work to be done in the manner that led to these events is disturbing. The fact that he

prompted the victim to put on his hard hat and safety glasses shows that he was aware of some

level of risk, but the parallel fact that he encouraged the men to work in such a life-threatening

and obviously risk-fraught manner is dissonant. The Uehlins’ justifications and excuses listed

above are a thin film laid over a convincing body of evidence of intentional failure to comply

with the standards discussed in this decision. 

Order No. 8619341 

Inspector Coleman issued Order No. 8619341 on June 10, 2011, as a 103(k) order to

preserve the scene of the accident. (Tr.50:10-16; Ex. S-1) It is a procedural rather than

enforcement order and does not implicate a civil penalty. It was terminated at the conclusion of

Coleman’s accident investigation. (Tr. 51:23-52:2)

Citation No. 8619342 

Citation No. 8619342 (Ex. S-3; Docket CENT 2012-0307) issued on June 14, 2011, is the

crux of the enforcement action arising directly from the events that caused Buckler’s injuries.

The violation alleged in this citation contributed directly to the accident and arose from the

primary accident investigation. (Tr. 68:11-69:2) It alleges a 104(d)(1) violation of 30 CFR §

57.14105, which regulates procedures during repairs or maintenance and requires that before any

repair or maintenance is done on machinery or equipment, the equipment must be powered off

and blocked against hazardous motion. (Tr. 68:11-69:2) Inspector Coleman characterized this

citation as reasonably likely to be fatal, potentially affecting a single miner, significant and

substantial (“S&S”), arising from high negligence, and constituting an unwarrantable failure to

comply with a mandatory health or safety standard. 

The Violation

Inspector Coleman concluded that Buckler was injured because the machinery he and the

other miners were working on at the time of the accident was not locked or tagged out of

operation. (Tr. 71:2-15; 72:11-13; 143:8-144:14; Ex. S-12) Coleman considered the miners’

attempts to free the rock jam in the crusher impeller as repair work as defined in 30 CFR §

57.14105. (Tr. 72:2-7) He stated that it is a matter of common sense that using a pry bar to clear

rock jams while the impeller is operating is obviously dangerous. (Tr. 85:19-86:18) Coleman

concluded that if the crusher impeller had been locked out, the accident would not have

happened. (Tr. 62:7-24; 74:12-23; 88:6-16; 169:8-11) In order to lock out the crusher impeller,

36 FMSHRC Page 2293
it would be necessary to shut off the diesel engine powering the impeller. (Tr. 71:16-72:1) 

Simply shutting the door over the shut-off switch is not enough. Someone could still open it and

turn the circuit on. (Tr. 144: 20-145: 3)

The Uehlins do not dispute that the crusher impeller was operating and was not locked or

tagged out. (Tr. 22:8-11) However, Stephen Uehlin stated during his cross examination of

Inspector Coleman that he felt that clearing rock jams by opening the side access door on the

impeller unit would be dangerous because rocks behind the door might fall out. (Tr. 175:25-

176:5; 209:242-210:8) Coleman did not agree that clearing rock jams by opening the side access

door would be more dangerous. (Tr. 175:25-176:11; 176:13-177:9) It would be necessary to

shut off the impeller unit in order to open the side access door. If the impeller had been turned

off, there would have been no accident. (Tr. 72:14-73:7; 208:18-209:20) Coleman found “high”

negligence with this violation because John Uehlin was in the immediate vicinity and was

personally involved in the work to clear the rock jam. (Tr. 146:12-16) In Coleman’s opinion, an

injury resulting from this violation would likely be fatal because it would have drawn a miner

into the crusher. (Tr. 146:8-11)

The Uehlins contended that if Buckler had held his pry bar off to one side, as he had been

trained to do, the bar would have most likely missed him. (Tr. 57:21-25) However, Coleman

believed that since there were men standing on either side of Buckler, and since there was no

way to predict what trajectory the bar would follow, it was highly likely that someone would be

injured. (Tr. 58:1-10; 168:7-20) Coleman disagreed that holding the pry bar off to one side was

a safe way to free up rock jams while the impeller is working. To the contrary, he concluded that

not only was it an ineffective half measure, it also tended to show that the Uehlins were clearly

aware of danger involved in using a pry bar in this manner. (Tr. 75:9-14) Nonetheless, he

considered the fact that the Uehlins had trained their miners to use a pry bar in this manner as a

measure of mitigation against a conclusion that they were indifferent to the degree of danger

their miners faced using pry bars in this way. (Tr. 75:4-8)

Coleman interviewed the miners working along with Buckler, plant operator Matt Foster

(Tr. 62:25-63:3), Roger Lewendowski, the front end loader operator (Tr. 63:17-64:17), and

Mike Raines. (Tr. 48:25-49:7; 55:8-15; 159:23-160:3) Lewendowski had gone to get a sledge

hammer to use with a pry bar to force the jammed rocks into the crusher impeller and was the

only one who actually saw the accident happen. (Tr. 43:25-64:8; 49:12-23; 63:25-64:8; 202:21-

203:10) Foster was standing behind Buckler in the feeder hopper when the accident happened.

(Tr. 63:13-16) Lewendowski was the only miner on the scene who had been told to lock out the

equipment and to be careful. (Tr. 64:22-65:2; 146:17-20) He had received a 40-hour new miner

training. (Tr. 64:22-65:2) The other miners did not mention receiving any sort of safety training

other than standing off to the side of their pry bar. (Tr. 65:3-13) John Uehlin was aware of the

standard requiring equipment to be powered off before repairs or maintenance were done. (Tr.

225:24-227:5) Coleman felt that management had an obligation to train miners appropriately

and failure to do so is an element of unwarrantable failure. (Tr. 147:11-14)

From the foregoing, I conclude that the events associated with the crusher impeller

accident made out a violation of 30 C.F.R. § 57.14105. There is no question that the impeller

unit was not powered off nor was it blocked against hazardous motion as the miners attempted to

36 FMSHRC Page 2294
11 Exhibit S-34 is an MSHA Fatalgram describing a death caused by events essentially

identical with those of this case. Uehlin argued that they were not aware of the potential warning

that such communications provide because they did not have an internet connection and were not

able to receive them. The obvious danger involved in the practice that caused Buckler’s injury

does not require that the Fatalgram to be known to the Uehlins. The existence and availability of

the Fatalgram merely underscore the obviousness. (Tr. 76:5-23)

service the unit by removing the rock jam. These events made it more than reasonably likely

that a fatality would result. John Uehlin and three miners were affected by the negligence of

these events.

Negligence

Given the indifference shown by John Uehlin to the safety of his miners and the salutary

safety purpose behind this standard, I conclude that this violation is the result of reckless

negligence. John Uehlin displayed conduct devoid of any meaningful degree of care. I disagree

with Inspector Coleman’s leniency in treating the fact that the miners had been trained to hold

their pry bars off to one side as a point of mitigation. Given the high likelihood of a grievous

injury and the clearly speculative hope that holding a pry bar off to one side would avoid an

accident, I cannot agree that it should be given weight as evidence of a realistic concern on the

Uehlins’ part about their miners’ safety as they performed this a hazardous task. The

combination of obvious and extreme danger with such close direction and involvement by a key

management person can only be taken as evidence of objective indifference vis-à-vis the miners’

safety.

Gravity

The hazard associated with the events in this case is palpable and real. Using a steel pry

bar to dislodge jammed rock in an operating crusher intake unit causes anyone hearing about it to

cringe at the thought of what could happen if the bar came in contact with the rapidly and

forcefully moving crusher intake unit. This is underscored by the fact that the intake opening is

draped with lengths of heavy chain to form a protective but movable barrier to lessen the

likelihood that rock coming into contact with the impeller unit will be thrown back at anyone

close enough to be hit. (Tr. 40:8-15) The effect of the hazard is unfortunately all too evident in

this case – it is precisely what happened to Buckler, and could have been worse. I disagree with

Inspector Coleman’s assessment that this violation was only reasonably likely to occur given that

an accident happened. I conclude that the gravity assessment should be modified from

reasonably likely to “occurred,” and be determined to affect a single miner. 

Significant & Substantial

These events clearly arose from an S&S violation of the standard. The underlying

mandatory safety standard was violated. Using steel pry bars to dislodge jammed rocks in the

intake of a powered and active impeller unit contributed directly to the discrete and obvious

hazard that something forced into the impeller would be thrust back out with great force.11 The

likelihood that this hazard would result in an injury is unfortunately beyond debate here. The

36 FMSHRC Page 2295
12 A key aspect of that case was the fact that the violation occurred “in the presence of a

foreman, who under Commission precedent, is held [to] a high standard of care.” Youghiogheny

& Ohio Coal Co., 9 FMSHRC 2007, 2011 (December 1987). The Commission noted that a

section foreman is “held to a ‘demanding standard of care in safety matters,’” and that there is a

“heightened standard of care required of the section foreman and mine superintendent.” Id.

(citing Wilmont Mining Co., 9 FMSHRC 684, 688 (Apr. 1987); S & H Mining, Inc., 17

FMSHRC 1918, 1923 (Nov. 1995)).

injury resulted exactly as any prudent person would anticipate. The reality of the injury to

Buckler and its severity establish the reasonable likelihood of it being serious in nature. The 

National Gypsum test for an S&S violation is satisfied in full.

Unwarrantable Failure

The events summarized above constituted an unwarrantable failure to abide by the

requirements of the standard in question. The following factors convince me that the actions in

question here resulted from aggravated conduct by intention, indifference, and recklessness: (1)

John Uehlin purposefully decided to ignore the very specific mandate in 30 C.F.R. § 57.14105

which requires that repairs or maintenance on mine machinery only be done after the power is cut

off and the machinery is blocked against hazardous motion; (2) He was derelict in his duty as a

foreman to model safe practices and to teach by example the importance and prudence of

complying with safety standards;12 and, (3) the hazard created by attempting to remove a rock

jam while the crusher impeller is in operation was obvious and grave. The first is an example of

behavior that illustrates Uehlin’s personal willingness to sacrifice safety to expediency. The

second shows his indifference or recklessness towards his responsibility to look out for the safety

of his crew. The third speaks to his poor judgement. All of these factors are consistent with the

Commissions decision in Midwest Material Company, supra, and the cases cited in it. 

Penalty

The allegations in the Secretary’s petition regarding the 30 CFR § 100.3 penalty factors

were not factually contested by the company at the hearing. (Petition, Exhibit A) The Uehlins

did state that their quarry had been closed because the railroad had blocked their access by

removing a track crossing after a significant rainfall and flooding and that their mining revenues

had been reduced by the costs associated with their defense of legal actions related to the access

closure and civil litigation arising from Buckler’s injuries. Beyond that, the Uehlins presented no

substantive evidence to support the assertion that their ability to continue mining operations

would be impacted by the penalty imposed in this case. With nothing more than the summary

allegations regarding the impact of a penalty on Uehlin’s ability to continue in business, I am

constrained from making a penalty adjustment in their favor. 

I accept the Secretary’s allegations regarding the operator’s size. I have considered the

history or past violations at this mine summarized in Exhibits S-31 and S-41, including the

citation for the standard discussed above. I have made findings and conclusions regarding the

negligence and gravity associated with this citation. I am aware that the company stopped mining

at this location and that the Uehlin brothers claim that they could declare bankruptcy for this

36 FMSHRC Page 2296
13 Commission Rule 58(b), 29 C.F.R. § 2700.58(b), states: Any party, without leave of

the Judge, may serve on another party a written request for admissions. A party served with a

request for admissions shall respond to each request separately and fully in writing within 25

days of service, unless the party making the request agrees to a longer time. The Judge may

order a shorter or longer time period for responding. A party objecting to a request for 

admissions shall state the basis for the objection in its response. Any matter admitted under this 

rule is conclusively established for the purpose of the pending proceeding unless the Judge, on 

motion, permits withdrawal or amendment of the admission. (Emphasis added.)

company. After considering all of the penalty criteria, I assess a penalty of $14,743.00 for this

citation. 

Citation No. 8619343

Citation No. 8619343 (Ex. S-4; Docket CENT 2011-1130) alleges a violation of 30 CFR §

57.15005, which requires that safety belts and lines be worn where there is a fall danger. (Tr.

114:6-115:6) This citation is characterized as reasonably likely to be fatal, potentially affecting a

single miner, S&S, arising from high negligence, and constituting an unwarrantable failure. It

was issued on June 15, 2011, as part of the spot inspection. It was not a direct cause of the

accident. (Tr. 114:23-115:6)

The Violation

Inspector Coleman wrote this citation because the standard requires the use of some form

of fall protection when there is a fall danger. (Tr. 115:25-116:14) Incident to his investigation of

the Buckler accident, Coleman concluded that none of the miners working in the primary crusher

vibrating hopper with Buckler at the time of the accident was wearing fall protection, and that

there was a fall hazard at the time of the accident. (Tr. 116:15-117) A photo of the hopper taken

by Coleman shows where John Uehlin and the other miners were standing at the time of the

accident. (Tr. 118:11-17; Ex. S-5) Coleman concluded that it was only about two feet from where

the miners were standing to the edge of the hopper, and that it was about 15 feet from the hopper

edge to the ground. (Tr. 118:18-119:4; 179:12-15; Ex. S-4) Although there were wing walls on

the hopper, they did not extend to where the miners were standing. (Tr. 119:18-120:8; Ex.S-19,

pages 4-6) 

Stephen Uehlin testified that safety harnesses were available for the miners, but it was left

up to them to decide when to wear them. Further, management felt that with the six foot high side

walls on the hopper it would be impossible for a miner to fall out. (Tr. 177:10-20; 179:16-180:1;

Response to Request for Admission, No. 3.11; Ex. S-29) No one was wearing a fall harness at the

time of the accident. (Tr. 214:11-18) In his response to the Secretary’s Requests for Admission,13

Stephen Uehlin admitted that on June 9, 2011, three miners were working on the vibrating feeder

without using any safety belt or line (Response to Request for Admission, No. 11.3; Ex. S-29);

that the miners were standing on top of approximately 18 inches of rock in the vibrating feeder

hopper (Response to Request for Admission, No. 11.2; Ex. S-29); that the distance from the top of

the hopper to the ground was approximately 15 feet 4 inches (Response to Request for

Admission, No. 11.6; Ex. S-29); and, that if a violation were found to have occurred as alleged in

36 FMSHRC Page 2297
Citation No. 8619343, the violation would be significant and substantial. (Response to Request

for Admission, No. 11.7; Ex. S-29)

Coleman concluded that the wing walls at the places where the miners had been standing

were not high enough to protect against falling out of the hopper to the ground 15 feet below. (Tr.

120:23-121:12; 178:22-179:10) There was also a gap in the wing walls large enough for a miner

to fall through. (Tr. 120:9-14; 180:15-181:2; Ex. S-19) 

Coleman characterized Citation No. 8619343 as significant and substantial (“S&S”)

because he felt it was reasonably likely to result in an accident that would entail lost workdays or

restricted duty. He concluded that it was foreseeable that someone could trip and fall over the

side of the hopper. (Tr. 121:13-22) He classified the violation as potentially fatal because of the

15 foot drop from the hopper edge to the ground below. (Tr. 122;13-16) He characterized the

violation as involving high negligence because John Uehlin, an owner and manager of the

company, was working in the immediate vicinity of the other miners and allowed them to work in

the presence of the fall hazard. (Tr. 122:20-24) Finally, Coleman concluded that three persons

were subjected to the fall hazard. (Tr. 122:17-19) 

In support of his allegation that this citation arose from an unwarrantable failure to comply

with the relevant standard, Coleman testified that he considered the lack of fall protection obvious

and dangerous, that the hazard had existed for an extended time based on comments from the

Uehlins that the workers at their quarry had never used fall protection under such circumstances

(Tr. 122:25-123:3), and that John Uehlin was aware of the hazard by virtue of the fact that he was

working alongside the other miners. (Tr. 123:4-19) 

I find that the feeder hopper is an area where miners are required to use fall protection. 

There was a reasonable potential that someone working there could topple over the edge and fall

15 feet to the ground. There was a section of the hopper wall that was lower than the rest, which

increased the risk of a fall to the ground. The miners working in the hopper on June 9, 2011,

were not wearing any type of fall protection. I conclude that this constitutes a violation of 30

CFR § 57.15005.

Negligence

I find that John Uehlin was working with and supervising the other miners at the time of

this violation. I concur with Inspector Coleman that this supports a conclusion that this violation

was the result of high negligence. There were no mitigating factors.

Gravity

For the reasons stated by Inspector Coleman in his testimony, summarized above, and

supported by Exhibit S-4, I conclude that it was reasonably likely that a miner could suffer a fatal

injury as a result of a fall from the vibrating hopper. 

36 FMSHRC Page 2298
Significant & Substantial

This violation is appropriately characterized as S&S. The S&S nature of the violation is

deemed conclusively established by the answer to the Secretary’s Request for Admission, No.

11.7; Ex. S-29. Independently, the underlying mandatory safety standard was violated. The

failure to require the use of suitable fall protection in this setting reasonably contributes to the

hazard that a miner might fall out of the feeder hopper. The likelihood that this hazard would

result in an injury is also reasonably certain, as is the likelihood that the resulting injury would be

serious in nature. As above, the National Gypsum test for an S&S violation is satisfied in full in

this instance.

Unwarrantable Failure

Stephen Uehlin testified that they had fall protection harnesses on site, and their practice

was to leave it up to the individual miner whether to use fall protection. The availability of fall

protection harnesses for the miners is not enough. Management was indifferent to their obligation

to take effective and reasonable steps to require that their miners use fall protection. The use of

fall protection is the subject matter of a mandatory safety standard; it is not optional. The

Uehlins’ casual attitude about this vital safety issue is consistent with the recklessness evident in

the Buckler accident scenario. Management’s permissive stance regarding the use of fall

protection is corrosive in the work place. It leads to dangerous complacency among the miners

who should have been trained and instructed as a matter of company policy to wear fall protection

at all times when working in the hopper. 

The events summarized above constituted an unwarrantable failure to abide by the

requirements of the standard in question. The following factors convince me that the actions in

question here resulted from aggravated conduct by intention, indifference, and recklessness: (1)

The lack of fall protection was obvious and dangerous; (2) The hazard existed for an extended

time; (3) The hazard resulted from a longstanding practice condoned by management; and (4)

John Uehlin was aware of the hazard. These factors are consistent with the Commissions

decision in Midwest Material Company, supra, and the cases cited in it. 

Penalty

I accept the Secretary’s allegations regarding the operator’s size. I have considered the

history or past violations at this mine summarized in Exhibits S-31 and S-41, including the

citation for the standard discussed above. I have made findings and conclusions regarding the

negligence and gravity associated with this citation. I am aware that the company stopped mining

at this location and that the Uehlin brothers claim that they could declare bankruptcy for this

company. After considering all of the penalty criteria, I assess a penalty of $2,000.00 for this

citation, as proposed by the Secretary.

Citation No. 8619344 

Citation No. 8619344 (Ex. S-6; Docket CENT 2011-1131) alleges a violation of 30 CFR §

57.14107(a), which requires that moving machine parts such as gears, sprockets, chains, pulleys,

36 FMSHRC Page 2299
etc., be guarded to prevent contact. (Tr. 124:25-125:13) This citation is characterized as

“reasonably likely” to result in permanent disability, potentially affecting a single miner, S&S,

and arising from “high” negligence. 

The Violation

Citation No. 8619344 was written on June 14, 2011 (Tr. 123:24-124:4), as part of the spot

inspection. (Tr. 124:5-7) It alleges failure to guard the tail pulley on the half- inch conveyer. (Tr.

125:4-13) The cited standard requires guarding on moving machine parts such as head and tail

pulleys, takeup pulleys, shafts, and similar machinery. (Tr. 124:25-125:13) Coleman noted a

missing tail pulley guard and material buildup around the guard area showing in his opinion that

it had been removed for some time. (Ex. S-7; Tr. 126: 25-127:5) Coleman found that miners had

been in the area close to the missing guard from the evidence of spillage in that area. (Tr. 126:8-

16; 128:11-12) Without the guard, there is a danger that the tail pulley will grab a miner and pull

him into it. (Tr. 127:6-13; 128:2-10) Coleman concluded that this violation arose from high

negligence because a manager was aware of it, the material build up showed that it had existed for

a long time, and the guard had been removed and left in the area, indicating that it could have

been easily fixed. The mine had been cited for this type of violation before. (Tr. 129:9-22;

130:20-23; Ex. S-8) Coleman characterized this violation as S&S because he concluded that it

was reasonably likely that the missing guard would cause an accident with lost work days. He

concluded that there was a foreseeable potential of someone being in the area and getting caught

in the pulley. (Tr. 128:13-22) He was also aware of accidents involving pulleys that caused

permanent disability and dismemberment. (Tr. 128:23-129:8) 

The Uehlins argued that the crusher was not operating the day of the accident. (Tr.

181:13-182:22) Coleman testified that even though the crusher was not operating, it could still

have been turned on because it was not locked or tagged out. (Tr. 182:14-22) John Uehlin was

aware of the safety standard requiring machine guards. (Tr. 225:24-226:3) However, the Uehlins

countered that there were only three miners working the day of the accident, and all of them were

aware that the crusher unit was switched off. No one would have turned the crusher on as a

matter of common sense. (Tr. 182:24-183:3) Coleman concluded that because the crusher had not

been locked or tagged out of service, it was thus available for use – the key to the violation in his

mind. (Tr. 183:9-11) 

I find that the guard covering the access port to the tail pulley for the half-inch conveyor

belt had been removed, placed off to the side of the tail pulley, and not replaced. (Ex. S-7, p.1) 

The condition described by Coleman in his citation documentation (Ex. S-6, p.5) had existed long

enough for spillage material to accumulate in the area of the tail pulley and for someone to have

removed some of it prior to the inspection. I find that the missing guard created an entanglement

hazard. Management was aware of the missing guard. The guard could have been easily

reattached; it was found close to the tail pulley. The quarry had been cited for this type of

violation less than three months before this citation. (Ex. S-8) From this I conclude that 30 CFR §

57.14107(a) was violated. 

36 FMSHRC Page 2300
Negligence

I concur with Coleman’s negligence assessment. This violation resulted from high

negligence. The quarry manager was aware that the guard had been removed. Material build up

shows that the condition existed for a long time. The guard was removed and left in the area. It

could have been easily replaced. The mine had been cited for this type of violation before. There

were no mitigating factors.

Gravity

For the reasons stated by Inspector Coleman in his testimony and supported by Exhibit S6, I conclude that it was reasonably likely that a miner could suffer a permanently disabling injury

as a result of an entanglement in the tail pulley mechanism. I credit Coleman’s testimony about

his observation that spillage material had accumulated to a depth of approximately two inches and

that miners were expected to access the area for clean up periodically. (Ex. S-6, p.5) I also

concur with his finding that the missing guard posed a danger of entanglement in moving machine

parts. Id.

Significant & Substantial

This violation is appropriately characterized as S&S. The S&S nature of the violation is

deemed conclusively established by the answer to the Secretary’s Request for Admission, No.

11(d); Exhibit S-30. Independently, the underlying mandatory safety standard was violated. The

failure to replace the tail pulley guard reasonably contributes to the hazard that a miner might

become entangled in moving machine parts. The likelihood that this hazard would result in an

injury is also reasonably certain, as is the likelihood that the resulting injury would be serious in

nature. As above, the National Gypsum test for an S&S violation is satisfied in full in this

instance.

Penalty

I accept the Secretary’s allegations regarding the operator’s size. I have considered the

history or past violations at this mine summarized in Exhibits S-31 and S-41, including the

citation for the standard discussed above. I have made findings and conclusions regarding the

negligence and gravity associated with this citation. I am aware that the company stopped mining

at this location and that the Uehlin brothers claim that they could declare bankruptcy for this

company. After considering all of the penalty criteria, I assess a penalty of $362.00 for this

citation, as proposed by the Secretary.

Order 8619345

Order No. 8619345 (Ex. S-9; Docket CENT 2011-1130) was issued in response to an

unprotected opening along a travelway. (Tr. 131:22-25) It arose from the spot inspection and

alleges a Section 104(d)(1) violation of 30 CFR § 57.11012, which requires railings, barriers, or

covers to protect any opening near a travelway through which a person or material could fall. (Tr.

131:22-132:6; 132:15-17) It is characterized as “reasonably likely” to be permanently disabling,

36 FMSHRC Page 2301
potentially affecting a single miner, S&S, arising from “high” negligence, and constituting an

unwarrantable failure. 

The Violation

Coleman observed a three foot by seven foot opening along the catwalk directly above the

crusher and conveyor belt with no railing, barrier, or cover. (Tr. 133:19-134:1; 137:19-24; Ex. S10) He concluded that miners would have to step over the opening to get to the other side of the

work area. (Tr. 135:18-136:16) Coleman estimated that the travelway involved in this citation

was used about one time per month. (Tr. 136:17-19) The travelway was adjacent to the

unguarded opening. The opening was large enough that men or materials could fall through it.

(Tr. 136:25-137:9) Miners had stepped over the opening from the drive unit side to get to the

catwalk above the crusher. The distance from the travelway to impact on the conveyor belt is

approximately three feet – from the travelway to the crusher approximately eight feet. (Ex. S-9) 

Coleman refused to use the ladder where it was located to climb on the machinery. He made

them move the ladder because he did not want to climb up on the machinery in a manner that he

felt was unsafe. (Tr. 183:12-184:1) Coleman assessed that the unguarded opening created a

hazard of a broken leg or possible dismemberment. (Tr. 138:15-21) He believed that if the

crusher and conveyer had been in operation, a miner could get entangled. (Tr. 137:10-18) 

Coleman felt that there was a foreseeable potential that someone would fall through the opening.

(Tr. 138:6-10) In his opinion, it would have been practical to install a guarding device to protect

the opening. (Tr. 137:25-138:5) Because supervisors used the travelway, Coleman assessed the

negligence as “high.” (Tr. 138:22-25; Ex. S-9) He found nothing to mitigate the level of

negligence. (Tr. 139:1-3) Coleman classified the violation as an unwarrantable failure because

supervisors were aware of the condition, they took no action to fix it, it was obvious, it was very

dangerous, management knew that miners used this area, management used the area themselves,

and there had never been any protection in place. (Tr. 139:4-25)

The Uehlins admit the existence of the unprotected opening and its proximity to a

travelway. (Response to Request for Admission, No. 12.2, Ex. S-29) They stated that no one

traveled the area because they always went up on the machinery from the other side, and they

only did that once a month to change the oil. (Tr. 183:12-184:1) When the miners went up on the

catwalk, it was always at the end of the day when everything was already shut down. (Tr. 195:5-

20) However, Coleman testified that John Uehlin told him that they always climbed up the ladder

on the unprotected side to access the upper travelway (Tr. 184:2-7) whenever there was a rock

jam. (Tr. 184:8-11) The Uehlins also denied any responsibility for this violation because the

equipment came from the manufacturer without a railing on the catwalk. (Tr. 195:21-25)

I find that Coleman’s description of the violating conditions and his conclusion as to the

existence of a hazard that violates the standard deserve full credit. There was an unprotected

opening along a travelway large enough for a person or material to fall through. The opening

created the hazard that a person or an object might fall several feet and cause an injury on impact. 

The Uehlins’ arguments do not change my conclusion. Coleman factored into his assessment an

appropriate balance between accessing the area from the back side to tend to infrequent service

requirements and periodically accessing this area from the front side to clear rock jams. 

36 FMSHRC Page 2302
14 Uehlin qualifies its admission by claiming that the travelway was unused. I find that

the travelway was used enough to contribute to the hazard underlying the violation.

Uehlin’s argument that the equipment came from the manufacturer in this condition is of

no import in my analysis. The standard requires the mine operator to provide appropriate rails,

barriers, and covers, irrespective of the condition of the equipment when it was acquired by the

operator. See, Walsenburg Sand & Gravel Company, 11 FMSHRC 2233 (November 1989) cited

in Riverton Corporation, 16 FMSHRC 2082, 2095 (1994). 

I conclude that this makes out a violation of 30 CFR § 57.11012. The unprotected

opening created a foreseeable potential that a person or material could fall through the opening

and suffer significant injury, particularly if the crusher were in operation at the time. 

Negligence

The citation is characterized as “reasonably likely” to be permanently disabling,

potentially affecting a single miner, S&S, arising from “high” negligence, and constituting an

unwarrantable failure. I concur with Coleman’s negligence assessment. This violation resulted

from high negligence. The quarry manager was aware that the unprotected opening existed. It

would have been easy to install a suitable rail or cover. The condition existed for a long time. 

There were no mitigating factors.

Gravity

For the reasons stated by Inspector Coleman in his testimony and supported by Ex. S-9

and S-10, I conclude that it was reasonably likely that a miner could suffer a permanently

disabling injury as a result of a fall through the unprotected opening or being struck by an object

falling through the opening. I credit Coleman’s testimony about the frequency of and reasons for

miners being in this area and the fact that they were known to step over the opening to access the

catwalk above the crusher conveyor belt. (Ex. S-9, p.3; Ex. S-10) I also concur with his finding

that the missing guard posed a danger of entanglement in moving machine parts. Id.

Significant & Substantial

This violation is appropriately charged as S&S. The S&S nature of the violation is

deemed conclusively established by admission in Uehlin’s answer to the Secretary’s Request for

Admission, No. 12.7. (Ex. S-29, p.8) Independently, the underlying mandatory safety standard

was violated. Uehlin admits that the opening was above, below, or near a travelway14 (Response

to Request for Admission, No. 12.2), that the opening was approximately three feet by seven feet

in size (Response to Request for Admission, No. 12.3), that the opening created a three foot fall

hazard onto the primary crusher conveyor on one side (Response to Request for Admission, No.

12.4), that the opening created an eight foot fall hazard to the ground on the west end of the

catwalk (Response to Request for Admission, No. 12.5), that there were no warning signals

posted or installed in the cited area. (Admission No. 12.6), and that on the date of the citation,

John Uehlin, co-owner, was aware of the cited condition. (Admission No. 12.8)

36 FMSHRC Page 2303
The failure to maintain a suitable rail or cover at the opening reasonably contributes to

the hazard that a miner might be injured by falling through the opening or being struck by

something falling through the opening from above. The likelihood that this hazard would result

in an injury is reasonably certain given the frequency of miners being in this area and the

potential fall heights, as is the likelihood that the resulting injury would be serious in nature. As

above, the National Gypsum test for an S&S violation is satisfied in full in this instance.

Unwarrantable Failure

Uehlin defends the lack of protection for the opening by claiming that its miners had been

warned not to go around the area in question. (Response to Request for Admission, No. 12.9) 

Assuming this is true, it is simply not appropriate for a mine operator to attempt to shift its strict

liability compliance obligations to its employees by claiming that they had been warned. The

duty of compliance cannot be delegated or shifted in this manner. Regardless of whether miners

have been verbally warned against an apparent hazard, the operator still has the statutory duty to

eliminate the hazard. See Sec'y of Labor, Mine Safety & Health Admin. (MSHA), 6 FMSHRC

1871, 1878 (Aug. 29, 1984) and cases cited therein (Commissioner Lawson dissenting). Once

again, management was indifferent to their obligation to take effective and reasonable steps to

protect against this hazard. 

The events summarized above constituted an unwarrantable failure to abide by the

requirements of the standard in question. The following factors convince me that the actions in

question here resulted from aggravated conduct by intention, indifference, and recklessness: (1)

The lack of railing, barriers, or covers to protect the opening was obvious and dangerous; (2) The

hazard existed for an extended time; (3) The hazard resulted from a longstanding practice

condoned by management; and (4) John Uehlin was aware of the hazard. These factors are

consistent with the Commissions decision in Midwest Material Company, supra, and the cases

cited in it. 

Penalty

I accept the Secretary’s allegations regarding the operator’s size. I have considered the

history or past violations at this mine summarized in Exhibits S-31 and S-41, including the

citation for the standard discussed above. I have made findings and conclusions regarding the

negligence and gravity associated with this citation. I am aware that the company stopped mining

at this location and that the Uehlin brothers claim that they could declare bankruptcy for this

company. After considering all of the penalty criteria, I assess a penalty of $2,000.00 for this

citation, as proposed by the Secretary.

Citation No. 8619346 

Citation No. 8619346 (Ex. S-11; Docket CENT 2011-1131) alleges a violation of 30 CFR

§ 57.12016, which requires that powered equipment be powered off and locked and tagged out

before any mechanical work is done on it. (Tr. 140:8-25) This citation is characterized as

“reasonably likely” to be fatal, potentially affecting a single miner, S&S, and arising from “high”

negligence. 

36 FMSHRC Page 2304
Inspector Coleman wrote this citation because the vibrating feeder hopper the miners had

been standing and working in was not locked or tagged out. (Tr. 140:8-14) The vibrating feeder

shakes rock down into the crusher. It is separate from the crusher. (Tr. 140:19-25) It was deenergized, but not locked or tagged out while the miners were working in it. (Tr. 143:8-144:14) 

The switch for the vibrating hopper was located in a structure a short distance from the feeder. 

The switch was not locked, and no warnings were posted. (Tr. 145:4-20)

 Although the vibrating hopper was de-energized, Coleman concluded there was a

foreseeable potential it could be turned on while miners were working in it. (Tr. 146:3-7) As a

result, he classified this violation as S&S. 

Uehlin argued that the switch circuits were in fact locked because their switch was located

in a building whose door was latched but not locked. (Response to Request for Admission, No.

12(d); Ex. S-30, p.7) Coleman could not refute this assertion. (Tr. 184:12-1855) Coleman did

not consider a danger sign on the switch shed a suitable means of locking and tagging out. He

wanted to see a lock or tag on the switch circuit itself. (Tr. 185:11-186:4) Uehlin also argued that

all three of its miner employees knew where the switch to the vibrating hopper was located and

knew that it was powered off at the time because they were all working inside the hopper.

(Response to Request for Admission, No. 12(g); Ex. S-30, p.7) 

The Violation

30 CFR § 57.12016 requires that electrically powered equipment be deenergized before

mechanical work is done on it. The thrust of the standard is the requirement that power switches 

be locked out or other measures taken to prevent the equipment from being inadvertently

energized. In addition, the standard requires that suitable warning notices be posted at the power

switch and signed by the individuals who are to do the work. Such locks or preventive devices are

to be removed only by the persons who installed them or by authorized personnel. This is a

triple-safe protection regimen. Although it does allow for some interpretation as to what “other

measures” are sufficient to provide the protection contemplated by the standard, there is nothing

in the standard that allows for a decrease in the multi-leveled protections called for. Although

Uehlin argues that the power switch for the vibrating crusher feeder was in a separate shed

structure that could be locked, but was not (Response to Request for Admission, No. 12(d)), and

all three of its miner employees knew where the switch was and would know at all times where

their colleagues were, and would have been savvy enough not to turn the switch back on without

first checking to make sure that no one was working on the deenergized equipment, there was no

warning sign on the switch box or the structure in which it was located. (Response to Request for

Admission, No. 12(e)) This is not enough to maintain the multi-level protection required by the

standard. Certainly, these half measures are not adequate “other measures” which would satisfy

the protective intent of the standard. They are excuses for full compliance that tend to weaken the

protection miners are given in the standard. Anything that tends to weaken those protections

violates the standard. 

Accordingly, I find that 30 CFR § 57.12016 was violated by the facts listed above and

relied on by Coleman when he wrote the citation. Uehlin and his miners were doing mechanical

work in the vibrating hopper. (Tr. 143:14-21; Response to Request for Admission, No. 12(c)) The

36 FMSHRC Page 2305
hopper is appropriately considered electrical equipment. (Response to Request for Admission,

No. 12(b)) The fail-safe, muti-level protections of the standard were weakened by the fact that

the equipment was not properly locked or tagged out. These facts create the hazard and increase

the likelihood that a miner could inadvertently reenergize the equipment and cause injury to a

fellow miner. It is not enough to assume that miners’ common sense will protect them. It is not

enough to assume that miners will always know where their colleagues are and what they are

doing at all times, even when working above ground on equipment such as this. It is exactly for

failures of common sense and the lack of due and ordinary caution that mining standards contain

multiple and redundant layers of protection.

Negligence 

I concur with Coleman’s assignment of high negligence. The quarry manager was working

alongside the other miners in the vibrating hopper. Even construing the evidence of actual

knowledge in his favor, he should have done something to determine whether the power switch

was properly locked or tagged out. In addition, I deem him aware that there was an increased risk

that the power switch could be turned on because he knew that the switch was in an unlocked

structure and that there was nothing present that could serve as an appropriate danger tag. 

There were no mitigating factors. The fact that the power switch was in a separate

structure and that there was a lock on the door that could have been used to completely lock out

the power switch do not amount to mitigation. Mitigation is something the operator does

affirmatively, with knowledge of the potential hazard being mitigated, that tends to reduce the

likelihood of an injury to a miner. 

Gravity

Inspector Coleman considered the possibility that one of the three miners working in the

vibrating hopper could have left the others, gone to the power switch location, and re-engaged the

power to the crusher hopper. He based his assessment of “reasonable likelihood” on this. (Ex. S11, p. 4) I find that this is a reasonable position to take. 

For the reasons stated by Coleman in his testimony and supported by Exhibit S-11, p. 4, I

conclude that it was reasonably likely that as many as three miners could suffer a fatal injury as a

result of the vibrating crusher hopper being inadvertently powered on. 

Significant & Substantial

This violation is appropriately charged as S&S. The S&S nature of the violation is deemed

conclusively established by admission in Uehlin’s answer to the Secretary’s Request for

Admission, No. 12(f). (Ex. S-30, p.7) Independently, the underlying mandatory safety standard

was violated. There was a substantial hazard that the equipment would be re-energized while

miners were working on it. There were no warning signs or tags to give a person a visual clue

that men could be working on the equipment. John Uehlin should have known that the equipment

was not locked or tagged out. 

36 FMSHRC Page 2306
15 On cross examination, John Uehlin raised the possibility that Coleman had asked to see

(continued...)

The likelihood that this hazard would result in an injury is reasonably certain given the

fact that miners were actively working in the vibrator hopper, using heavy metal tools in close

proximity to the same moving parts that caused the injury to Buckler. Simple reference to the

facts of the Buckler injury scenario shows the clear likelihood that any resulting injury would be

serious in nature. The National Gypsum test for an S&S violation is satisfied in full. 

Unwarrantable Failure

This citation does not allege an unwarrantable failure on the part of the operator. Coleman

commented that he might have classified it as such, but he gave Uehlin the benefit of the doubt on

the issue of whether management (John Uehlin) had actual knowledge that the vibrating hopper

was not locked and tagged out. (Tr. 146:21-147:10) I see no reason to change that assessment.

Penalty

As above, I accept the Secretary’s allegations regarding the operator’s size. I have

considered the history or past violations at this mine summarized in Exhibits S-31 and S-41,

including the citation for the standard discussed above. I have made findings and conclusions

regarding the negligence and gravity associated with this citation. I am aware that the company

stopped mining at this location and that the Uehlin brothers claim that they could declare

bankruptcy for this company. After considering all of the penalty criteria, I assess a penalty of

$807.00 for this citation, as proposed by the Secretary. 

Citation No. 8619347 

Citation No. 8619347 (Exhibit S-13: Docket CENT 2011-1131) alleges a violation of 30

CFR § 48.29, which requires that a mine operator keep a copy of form 5000-23 for each miner on

file for examination, showing that the miner has received MSHA training (Tr. 148:20-149:3), and

that the mine operator maintain training records for each miner on mine premises for two years.

(Tr. 150:9-151:16) 

This citation is considered a paperwork violation; it does not implicate any degree of

gravity (Tr. 152:6-8); it is characterized as having no likelihood of causing injury (Ex. S-13); it

alleges no lost work days (Tr. 152:9-16); but, it arises from “high” negligence (Ex. S-13, p. 5). 

The citation alleges that Uehlin failed to maintain training records for Ronald Buckler. (Tr.

148:25-149:3) During the aftermath of the Buckler injury, MSHA asked Uehlin to produce the

training records for Buckler. As of the time of the hearing, Uehlin had not done so. (Tr. 151:18-

152:5) 

Coleman testified that he asked to see the records for Buckler’s initial miner training. (Tr.

186:5-18) When Uehlin could not produce them, Coleman cited Uehlin for not having the initial

training records, not the annual updates.15 (Tr. 186:19-187:1) Coleman testified that he may have

36 FMSHRC Page 2307
15(...continued)

the records of Buckler’s annual eight-hour refresher training instead of the initial new miner

training. (Tr. 184:14-187:1)

16 I give no credibility to John Uehlin’s claim that he had never understood that MSHA

wanted to see the Buckler training records, and that was the reason the records were never

produced. Uehlin was presumed to know of their obligation to maintain those records in

accordance with the standard. The claim that they never understood that MSHA wanted to see

the records is patently incredible.

seen the records for the annual refresher training, but that is not what he wanted to see. (Tr.

187:11-14) The SOL asked for the training records in discovery. (Tr. 216:10-12) Uehlin never

provided them. (Tr. 214:20-215:15; 216:18-217:19) Stephen Uehlin claimed to have the relevant

training records in his hearing testimony and in the answer to the Secretary’s Requests for

Admissions (Ex. S-30, Response to Request for Admission, No. 13(a)), but claimed not to have

understood what Inspector Coleman was asking for. (Tr. 205:23-206:16)16

The Violation

Uehlin was required to keep copies of Buckler’s initial training records so as to make

them available to MSHA on request. Despite being asked several times to produce them and

claiming all along that they would have been provided if only the request had been clearer, Uehlin

never produced them – even at the hearing. This is a violation of the standard.

Negligence

I concur with Inspector Coleman’s assessment of high negligence for this violation. John

Uehlin claimed to be aware that the quarry was required to keep initial training records on hand

for MSHA inspection. I have discounted his excuse about not understanding that Coleman was

asking for records of Buckler’s initial miner training and not the records of annual refresher

training. There is, therefore, nothing that would mitigate against the finding of high negligence.

Gravity

Since this is a paperwork violation, Coleman assessed it as having no likelihood of

contributing to an injury and classified the violation as involving no lost work days. 

Significant & Substantial

Inspector Coleman did not allege that this paperwork violation was a significant and

substantial violation of the standard. There is no basis to second guess his assessment.

36 FMSHRC Page 2308
17 Exhibit S-15, the MSHA escalation report, shows the time of accident as 11:45 am

central time. It also shows that Steve Uehlin first notified MSHA of the accident at 12:58 pm

central time. The time discrepancies are of no import. (Tr.157:12-158:2)

Penalty

As above, I accept the Secretary’s allegations regarding the operator’s size. I have

considered the history or past violations at this mine summarized in Exhibits S-31 and S-41,

including the citation for the standard discussed above. I have made findings and conclusions

regarding the negligence and gravity associated with this citation. I am aware that the company

stopped mining at this location and that the Uehlin brothers claim that they could declare

bankruptcy for this company. After considering all of the penalty criteria, I assess a penalty of

$100.00 for this citation. 

Citation No. 8619348 

Citation No. 8619348 (Ex. S-14; Docket CENT 2011-1129) alleges a violation of 30 CFR

§ 50.10(b) which requires that a mine operator notify MSHA within 15 minutes of an injury at a

mine site which has a reasonable potential to cause death. (Tr. 153:4-154:5) This citation is also

characterized as having no likelihood of causing injury (“paperwork violation”) (Tr. 158:10-14) ,

but arising from “high” negligence. One of the rationales underlying this requirement is to allow

MSHA to immediately issue a “j” order which requires that the accident scene be preserved in the

state it was in at the time of the accident. (Tr. 154:6-15) 

John Uehlin filled out the MSHA standard accident report form, 7000-1 (Ex. S-23) on July

7, 2011. It shows the time of accident as 12:00 pm. (Tr. 154:23-155:13)17 Steve Uehlin made the

first call to MSHA at 12:55 pm, some 55 minutes after the accident. (Tr. 155:23-156:2; 187:15-

188:5) Uehlin was aware of the 15 minute rule, but their first priority was to make sure that they

had people stationed at each intersection going into the quarry so that the ambulance would not

get lost on the way. (Tr. 219:3-17) John Uehlin affirmatively gave the order not to call the

accident into MSHA within 15 minutes. (Tr. 219:19-20) Coleman classified the violation as

arising from “high” negligence because the operator was aware that it was obligated to call the

accident into MSHA within 15 minutes and failed to do so. (Tr. 158:18-22) 

The Violation

John Uehlin admits that the initial call to MSHA’s hotline was delayed so as to focus all

of Uehlin’s resources on attending to Buckler’s needs and to facilitate his evacuation. (Tr. 219:3-

20) This is a technical violation of the standard.

Negligence

Coleman assessed the negligence level in this instance as high because Uehlin

management was aware of the 15-minute rule. (Ex. S-14, p.2) However, he did not factor any

mitigation into his negligence assessment. As I review these facts, I am convinced that the

decision to delay notifying MSHA of the event for a little more than an hour is properly seen as a

36 FMSHRC Page 2309
mitigating circumstance that was motivated by the demands of the emergency and represents a

balanced and prudent judgment call. As a result, I conclude that the negligence assessment for

this violation must be adjusted to “low negligence” as contemplated by Table X of 30 C.F.R. §

100.3(2)(d).

Gravity

Since this is a paperwork violation, Coleman assessed it as having no likelihood of

contributing to an injury and classified the violation as involving no lost work days. I concur.

Significant & Substantial

Inspector Coleman did not allege that this paperwork violation was a significant and

substantial violation of the standard. There is no basis to adjust his assessment.

Penalty

As above, I accept the Secretary’s allegations regarding the operator’s size. I have

considered the history or past violations at this mine summarized in Exhibits S-31 and S-41,

including the citation for the standard discussed above. I have made findings and conclusions

regarding the negligence and gravity associated with this citation. I am aware that the company

stopped mining at this location and that the Uehlin brothers claim that they could declare

bankruptcy for this company. After considering all of the penalty criteria, I assess a penalty of

$112.00 for this citation. 

ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C.§820(I), I assess the

penalties listed for the citation heard and the settled citations listed above for a total penalty of

$20,124.00. Uehlin Quarry is hereby ORDERED to pay the Secretary of Labor the sum of

$20,124.00 within 30 days of the date of this decision.

/s/ L. Zane Gill

L. Zane Gill

Administrative Law Judge

Distribution: 

Amanda K. Slater, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite

800, Denver, CO 80202-5708

Stephen Uehlin, 15478 County Road 409, Amazonia, MO 64421

36 FMSHRC Page 2310
ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY HEALTH AND REVIEW COMMISSION 

Office of the Administrative Law Judges 

721 19th Street, Suite 443 

Denver, CO 80202-2500 

August 5, 2014 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), Docket No. WEVA 2013-0025 

Petitioner, A.C. No. 46-09136-281297 A 

v.

SCOTT CARPENTER, 

Respondent. Mine: Broad Run Mine 

ORDER DENYING MOTION TO DISMISS

INTRODUCTION

This case is before me upon a petition for assessment of a civil penalty under Section 

110(c) of the Federal Mine Safety and Health Act of 1977. The Respondent has moved to 

dismiss this matter, or in the alternative, dismiss all civil monetary penalties due to the 

Secretary’s failure to issue a proposed assessment within a reasonable time. Resp. Br., 1. The 

Secretary opposes the Respondent’s motion, asserting that the assessment was filed within a 

reasonable timeframe, the Commission lacks authority to dismiss the action due to delay alone, 

and that the Respondent has failed to demonstrate actual prejudice. Sec’y Br., 1. As the 

Respondent has failed to show that the Secretary failed to comply with a jurisdictional time 

limit, delayed its prosecution due to caprice or malice, or provide evidence of significant 

material prejudice, the Respondent’s Motion to Dismiss is DENIED. 

BACKGROUND

The Respondent, Scott Carpenter, worked as a section foreman at the Big River Mining, 

LLC Broad Run Mine located in Mason County, West Virginia from February 2010 to April 

2010. Resp. Br, 1. On March 26, 2010 MSHA conducted an impact inspection of the Broad 

Run Mine, issuing a total of 16 citations and orders. Id. MSHA served Order No. 8023819 to 

Mr. Carpenter as the section foreman, alleging that ventilation controls were damaged on the 

section and stating that “the section foreman is aware of these listed conditions.” Resp Br.: Ex. 

2. Big River Mining abated Citation No. 8023819 that same day, four hours after the issuance

of the violation. Id. The Broad Run Mine was idled in April of 2010 and Mr. Carpenter 

subsequently gained employment with another mining company. Resp. Br.: Ex. 3, 2; Resp. 

Mot. to Reopen: Ex. 2,1. Big River Mining did not contest Order No. 8023819, and the 

violation became a final Order of the Commission on June 11, 2010, which Big River paid in 

full. 1

1

 http://www.msha.gov/ MINE ID# 46-09136 Violation History. 

36 FMSHRC Page 2311

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On August 2, 2010, Mr. Carpenter was interviewed by an MSHA Special Investigator in 

regards to the March 26, 2010 inspection at the Broad Run mine. Resp. Br., 2. Mr. Carpenter 

was not represented by counsel during the interview. Resp. Br., 2. The Special Investigator 

prepared a statement based on this interview which Mr. Carpenter apparently declined to sign. 

Resp. Mot. to Reopen: Ex. 2, 7. The statement form did not specify the purposes of the 

interview. The prepared statement referenced the specific circumstances of Citation No. 

8023819, but also described the Broad Run mine dispatcher providing advance notice of MSHA 

inspections and the failure of upper management to staff work crews with sufficient numbers of 

experienced miners. Resp. Mot. to Reopen: Ex. 2, 3-7. At the beginning of the statement form, 

Mr. Carpenter listed an address of 101 Dyer Road and indicated that he had begun working with 

Mammoth Coal at the Alloy Powellton Mine in May 2010. Resp. Mot. to Reopen: Ex. 2, 1. 

On August 9, 2010 Mr. Carpenter moved from the address he had listed during the 

Special Investigation interview. Resp. Br.: Ex 1, 1. Mr. Carpenter subsequently obtained legal 

counsel through Nicholas Preservati of Preservati Law Offices, PLLC. Resp. Br., 2. On August 

27, 2010, the District 3 Special Investigation unit forwarded the case to MSHA’s Technical 

Compliance and Investigation Office “TCIO”. Sec’y Response, 1-2. On Oct 11, 2010, Mr. 

Preservati advised the Special Investigator in writing that he represented Mr. Carpenter and 

requested that the Special Investigator direct all correspondence through counsel. Resp. Mot. to 

Reopen: Ex. 3, 1. 

On January 3, 2011, the Secretary sent a written notice to the idled Broad Run Mine 

office address, stating that MSHA was proposing to assess civil penalties against Mr. Carpenter 

individually on the basis of a special investigation. Sec’y Supp. Response: Ex. 1; Resp. Br.: Ex. 

3, 2. Mr. Carpenter no longer worked at the Broad Run mine at that date and asserts that he 

never received this preliminary notice. Resp. Br., 2; Resp. Response, 2. On February 7, 2011, 

MSHA held an in-house conference regarding this case, which Mr. Carpenter was not involved 

or notified of. Sec’y Supp. Response, 2. Eleven months later, on December 19, 2011, TCIO 

closed the investigation with a final decision to forward the case to the Assessment Office for 

the proposal of a civil penalty. Sec’y Response, 2. 

On February 23, 2012 MSHA delivered a notice of proposed assessment to Mr. 

Carpenter’s former address at 101 Dyer Road. 2 Resp. Mot. To Reopen: Ex. 6. Mr. Carpenter 

asserts that he never received the proposed assessment and as Mr. Carpenter did not file a notice 

of contest, the assessment became a final order of the Commission on March 26, 2012. Resp. 

Br., 2. On September 4, 2012, the Department of Treasury issued a statement to Mr. 

Carpenter’s previous address at 101 Dyer Road, notifying him that he was delinquent on 

payment of the civil penalty. Id. Mr. Carpenter asserts that the delinquency notice was not 

forwarded to him until September 22, 2012. Id. On October 3, 2012, Mr. Carpenter filed a 

motion to reopen with the Commission pursuant to Rule 60 (b) of the Federal Rules of Civil 

Procedure. Resp. Mot. to Reopen. Big River Mining dismantled the Broad Run Mine main 

2

 The February 21 Notice of Assessment was delivered to 101 Dyer Road on February 23, 2012 

and signed for by a J. Carpenter. Despite the shared last name, based on the Respondent’s affidavit and 

forthright handling of this matter, the Court does not doubt Mr. Scott Carpenter’s assertion that he did not 

receive the February 21 Notice of Assessment. 

36 FMSHRC Page 2312
office in early 2013, moving some shift inspection records to Beckley, WV while disposing of 

others. Resp. Br.: Ex. 3, 2. 

The Commission granted the Respondent’s Motion to Reopen on May 31, 2013 and 

directed the Secretary to file a petition for assessment with the Commission within 45 days. 

Scott Carpenter, 35 FMSHRC 1295, (May 2013). The Secretary complied with this order, 

filing a petition on July 11, 2012. Sec’y Br., 3. On August 22, 2013 the Respondent filed a 

Motion to Dismiss, stating that the Secretary failed to file the original proposed assessment 

within a reasonable time after the issuance of the March 26, 2010 citation and that the delay had 

prejudiced his defense. Resp. Br., 1. The Secretary opposed the motion, stating that the 

assessment was filed within a reasonable timeframe, the Commission lacked authority to 

dismiss the action due to delay alone, and that the Respondent had failed to demonstrate actual 

prejudice. 3

 Sec’y Br., 1. The Respondent filed a reply brief on September 3, 2013. Resp. 

Reply Br. 

On June 9, 2014, the Chief Administrative Law Judge assigned this matter for this 

court’s consideration. After reviewing the parties’ motions, I issued an Order Requesting 

Additional Information on June 30, 2014. The parties complied with this request and a 

subsequent request issued to the Secretary for clarification. Sec’y Response; Resp. Response; 

Sec’y Supp. Response. 

ANALYSIS

1. The Secretary did not notify the Respondent of the Proposed Assessment within a reasonable 

timeframe. 

Section 110 (c) of the Mine Act imposes civil liability upon agents of the operator who 

knowingly authorize, order, or carry out violations of the Mine Act. 30 USC 820(c). Section 

105(a) of the Mine Act states that the Secretary “shall, within a reasonable time after the 

termination of such inspection or investigation notify the operator by certified mail of the civil 

penalty proposed to be assessed under section 110 (a).” 30 USC 815(a). Commission ALJs 

have consistently held that the Section 105(a) “reasonable time” requirement applies to both 

110(a) and 110(c) actions. Steven Adkins, 35 FMSHRC 1481, 1482 (May 2013)(ALJ 

Manning). 

 The Commission has not yet addressed the precise question of how the Section 105 (a) 

“reasonable time” requirement applies to Section 110(c) actions. Adam Whitt et al, 2013 WL 

 3

 The Secretary argues that Brock v. Pierce County, 476 U.S. 253, 260 (May 1996), Tazco, Inc., 3 

FMSHRC 1895, 1896-97 (1981), and other appellate level cases preclude dismissal of proposed civil 

penalties based on delay alone. Sec’y Br., 4-9. The Commission has recently rejected similar arguments 

and maintained the “adequate cause” analytical framework set for in Salt Lake, 3 FMSHRC 1714 (July 

1981) regarding prosecutorial delays. Long Branch, 34 FMSHRC 1984, 1989-90 (Aug. 2012). Similarly, 

the Commission has reiterated its authority, when appropriate, to vacate civil penalty assessments due to 

unjustifiable delays in notice of assessments. Sedgman. 28 FMSHRC 322, 338 (June 2006). Based on 

these Commission decisions, I will not addressed or relied upon the Secretary’s arguments that the 

Commission is wholly prohibited from vacating a civil penalty due to delay. 

36 FMSHRC Page 2313
6792640, *3 (November 2013)(ALJ Andrews). However, the Commission has stated that the 

Section 105(a) “reasonable time” mandate, 

...does not impose a jurisdictional limitations period, but rather 

turns on whether the delay is reasonable under the circumstances 

of each case, as the Commission examines whether adequate cause 

existed for the Secretary's delay in proposing a penalty and 

considers whether the delay prejudiced the operator. Salt Lake 

County Rd. Dep't, 3 FMSHRC 1714, 1716-17 (July 1981); 

Medicine Bow Coal Co., 4 FMSHRC 882, 885 (May 1982); Steele 

Branch Mining, 18 FMSHRC 6, 13-14 (Jan. 1996); Black Butte 

Coal Co., 25 FMSHRC 457, 459-61 (Aug. 2003). 

Sedgman et al, 28 FMSHRC 322, 338 (June 2006). 

 

 For 110 (c) actions, the Secretary does maintain internal guidelines that call for MSHA 

to forward a final decision to the Office of Assessments within 7 months after the issuance of 

the underlying violation. MSHA Special Investigation Procedures, Handbook Number PH 05-

1-4, 4-4 (Aug. 2005). Additionally, the MSHA Program Policy Manual states that Section 110 

(c) penalty assessments will normally be issued within 18 months from the date of issuance of 

the subject citation or order. MSHA Program Policy Manual, Vol. I, p. 42 (Aug. 2007). 4

Indeed, ALJs have previously found that notice of assessments for 110 (c) actions served more 

than 18 months past the issuance of the citation failed to comply with the Section 105(a) 

“reasonable time” requirement and warranted dismissal. Doyal Morgan et al, 20 FMSHRC 38, 

42 (January 1998) (ALJ Merlin); Ernie Brock, 4 FMSHRC 201, 202 (February 1982)(ALJ 

Koutras). 

However, these internal guidelines do not impose a jurisdictional time limit upon the 

Secretary, and Notice of Assessments served outside the 18 month guideline are not per se

unreasonably late. Adam Whitt et al, 2013 WL 6792640, *3. Section 110 (c) investigations that 

involve serious accidents or complicated technical issues may require investigation and review 

longer than 18 months and still comply with the Section 105(a) “reasonable time” requirement. 

Doyal Morgan et al, 20 FMSHRC 42 (holding that delay in instant case warranted dismissal but 

stating that complicated investigations may warrant lengthier review prior to notice of 

assessment). Additionally, even in simple cases where the official notice of assessment is 

served outside the 18 month guideline, a prompt preliminary notice of proposed civil penalties 

assessment provides the agent with adequate notice of pending civil penalties. Stephen Reasor, 

34 FMSHRC 920, 923-24 (April 2012) (ALJ Moran). 

The Secretary did not provide the agent with prompt preliminary notice of proposed 

penalties in this case. Although the Secretary did direct a preliminary notice to the idled Broad 

Run mine office on January 3, 2012, it did so after the Respondent had notified MSHA that he 

no longer worked there and requested all correspondence to be directed through counsel. Sec’y 

 4

 According to MSHA’s website, this internal guidance is still in effect. See 

http://www.msha.gov/REGS/COMPLIAN/PPM/PMVOL1D.HTM 

36 FMSHRC Page 2314
Supp. Response, 1-2; Resp. Mot. to Reopen: Ex. 2, 1: Ex. 3, 1. As such, it is unremarkable that 

Mr. Carpenter did not receive this notice. Resp. Response, 1-2. 

As MSHA District 3 had forwarded the case to TCIO by August 27, 2010, it appears the 

substantive District 3 investigation of this case proceeded at a commendable pace ahead of 

MSHA’s internal guidelines. Sec’y Response, 1, 2; MSHA Special Investigation Procedures, 

Handbook Number PH 05-1-4, 4-4. However, following a district level conference on February 

7, 2011, over ten months passed without any apparent action before TCIO sent the case to the 

Office of Assessment on December 19, 2012. Id. 

 The Secretary then served the official notice of proposed assessment on February 23, 

2014, nearly 23 months after the underlying citation was issued. Sec’y Br., 2. As Mr. 

Carpenter no longer resided at the address served, and the Secretary failed to contact counsel as 

requested, the subsequent default order and delinquency notice did not reach Mr. Carpenter 

until nearly 30 months after the underlying citation was issued. Resp. Br., 9. As such, the 

notice of assessment was served well in excess of the “normal” 18 month timeframe set forth in 

the Secretary’s Program Policy Manual. MSHA Program Policy Manual, Vol. I, p. 42 (Aug. 

2007). Commission record indicates that non-attainment of MSHA’s Section 110 (c) 

investigation guidelines goals has not been rare in recent years. Adam Whitt et al, 2013 WL 

6792640 (Nov 2013) (ALJ Andrews); Dino Trujillo, 2013 WL 3152298 (May 2013); 

Christopher Brinson et al, 35 FMSHRC 1463 (May 2013) (ALJ Tureck); Steve Adkins, 35 

FMSHRC 1481(May 2013) (ALJ Manning); Stephen Reasor, 34 FMSHRC 920 (April 2012) 

(ALJ Moran); See Also Department of Labor, OIG Report, MSHA Can Improve Its Section 110 

Special Investigations Process,5-6 (finding that MSHA met its investigative timeframes in only 

30 percent of the cases studied for Federal Years 2010-2012) (“OIG Section 110 Report”). 5

 Nevertheless, the Secretary argues that its internal guidelines are not relevant and that 

this court is required to calculate any findings of delay from the December 19, 2012 date on 

which TCIO forwarded the case to the Office of Assessments. Sec’y Br., 14; Sec’y Response, 3 

(citing Secretary of Labor v. Twentymile Coal Co., 411 F.3d 256, 261 (D.C. Cir. 2005) (holding 

that delay in notice of assessment for 110(a) action arising from a serious accident must be 

calculated from the issuance of the accident report rather than the issuance of the underlying 

order)(“Twentymile”)). I concur that Twentymile instructs the Commission to calculate delay 

from the conclusion of the 110(c) investigation and give some degree of deference to the 

Secretary’s determination of the conclusion of the 110(c) investigation. Adam Whitt et al, 2013 

WL 6792640, * 3. 

However, the Secretary’s contention that the 110 (c) “investigation” included the 

lengthy period of administrative inaction from February 7, 2011 to December 19, 2011 is 

unreasonable. In making this finding, I respectfully depart from several of my colleagues’ 

findings that 110 (c) investigations are not concluded until MSHA forwards the case to the 

Office of Assessments. Christopher Brinson et al, 35 FMSHRC 1463, 1467 (May 2013) (ALJ 

Tureck) (citing Twentymile and finding that the Commission “must give deference” to the 

 5

 Report No. 05-13-008-06-001 http://www.oig.dol.gov/public/reports/oa/2013/05-13-008-06-

001.pdf. 

36 FMSHRC Page 2315
Secretary’s determination of the end of the 110 (c) investigation.); see also Adam Whitt et al, 

2013 WL 6792640, * 3. 

 In Twentymile, the court noted both the date that the accident report was issued and the 

later date that MSHA forwarded the matter to the Office of Assessments. Twentymile, 411 F.3d 

at 258. The court did defer to the Secretary’s stance that the investigation concluded with the 

issuance of accident report, but in no way indicated MSHA’s later decision to forward the case 

to the Office of Assessments was considered part of the accident investigation. Id. at 261. 

Thus, the August 27, 2010 District 3 report to TCIO stands as the closest analogy to the 

accident report relied upon by the Twentymile court as the termination of the investigation. Id. 

Additionally, the misaddressed January 3, 2011 preliminary notice indicated that MSHA 

considered the investigation complete at that point, as it stated MSHA intended to assess civil 

penalties against Mr. Carpenter on the basis of its special investigation. Sec’y Supp. Response: 

Ex.1,1. Granting the Secretary further deference, I find that the February 7, 2011 internal 

review could be considered part of the 110(c) investigation. However, past this point, the 

Secretary has not shown that any “investigative” or “review” efforts occurred between February 

7, 2011 and December 19, 2011. 

Thus, for purposes of determining whether the Secretary delayed the Notice of 

Assessment for this case, I find that MSHA’s investigation into this matter concluded on 

February 7, 2011, the last date on which the Secretary claimed substantive review occurred. 

Additionally, the Secretary’s failure to address the notice of assessment to counsel as requested 

prevented the Respondent from receiving the Notice of Assessment until September 22, 2012. 

Thus, I find that the Notice of Assessment was delayed by 19 months. 6 A 19 month delay does 

not comport with the Section 105(a)” reasonable time” requirement without an inquiry into 

possible justifications for the delay. Webster County Coal, 34 FMSHRC 1946, 1950-51 (Aug. 

2012) (holding that 18 month petition filing delay constituted an “error” that required the 

Secretary to produce evidence of adequate cause). 

 

2. The record presents non-frivolous reasons that explain the Secretary’s delay. 

Having found that the Secretary delayed the notice of assessment, this court is required 

to determine if there is “adequate cause” to explain the delay. Sedgman et al, 28 FMSHRC 338. 

After reviewing this case, it appears that the primary reason that it took nearly two and a half 

years for the preliminary and official notice of assessment to reach Mr. Carpenter is that the 

Secretary failed to heed Mr. Carpenter’s written request on October 11, 2010 to direct all 

correspondence through counsel. Resp. Br, 2; Resp. Mot to Re-open: Ex. 3, 1. The Secretary 

has not explained why two months after receiving Mr. Carpenter’s letter, and four months after 

being notified that Mr. Carpenter no longer worked at the Broad Run mine, it directed the 

preliminary notice of proposed assessment to the idled Broad Run mine office. Resp. Mot. to 

Re-open: Ex. 2,1 - Ex. 3, 1. Similarly, the Secretary has not explained why it directed the notice 

 6

 Even using the February 21, 2012 issuance of the Notice of Assessment as the end measuring 

point, I would have found a delay of over 12 months and required the Secretary to provide adequate cause 

for the delay. 

36 FMSHRC Page 2316
of assessment to Mr. Carpenter’s former personal address over 18 months after receiving Mr. 

Carpenter’s request to direct all correspondence through counsel. 

 However, as the Secretary directed the preliminary notice of assessment to the mine 

office at which the underlying alleged violation occurred, it appears that the Secretary was 

likely following standard procedure rather than acting out of any malice. Sec’y Supp. 

Response, Ex. 1. Likewise, it does not appear that MSHA, in directing the official notice of 

assessment to the personal address Mr. Carpenter initially provided to the Special Investigator, 

was acting out of mere caprice or bad faith. Resp. Mot. to Reopen: Ex. 3,1. Additionally, as the 

official notice of assessment was signed for and accepted at that address, the Secretary had 

reason to believe that Mr. Carpenter had received the final notice of assessment in February of 

2012. Resp. Mot. To Reopen: Ex. 6. As such, non-frivolous reasons explain the Secretary’s 

failure to direct the preliminary and final notice of assessment to Mr. Carpenter’s counsel as 

requested. In making such a finding, I follow the Commission’s acceptance of similar 

administrative mishaps. Webster County Coal, 34 FMSHRC 1950-51 (excusing 18 month delay 

in filing numerous penalty petitions caused by a clerical error); Salt Lake, 3 FMSHRC 1717 

(stating that “the Secretary is engaged in voluminous national litigation and mistakes can 

happen”). 

 As discussed above, the secondary cause of the delay was the ten plus month gap 

between the last apparent substantive review of this matter and the final decision by TCIO to 

forward the case to the Office of Assessments. Sec’y Response, 2. The Commission has found 

similar delays in the prosecution of a case excusable when explained by an increase in MSHA’s 

caseload at the national level. Rhone Poulenc of Wyoming Co., 15 FMSHRC 2089 (Oct. 1993) 

aff’d 57 F. 3d 982 (10th Cir. 1995); Long Branch Energy, 34 FMSHRC 1984, 1993-94 (August 

2012). TCIO was responsible for this matter during a timeframe of increased enforcement 

actions under the MINER Act. Sec’y Resp., 2.; Long Branch Energy, 34 FMSHRC 1993-94. 

Additionally, I take judicial notice that TCIO was responsible for overseeing the 

investigation into the April 5, 2010 Upper Big Branch explosion which occurred only two 

weeks after the underlying citation at issue. OIG Section 110 Report, 3 (stating that “...during 

FYs 2010 through 2012, MSHA enforcement personnel were involved in the investigation of 

the Upper Big Branch mine explosion and the concurrent internal review.”); see Union Oil, 11 

FMSHRC 289, 300 n. 8 (March 1989) (holding that judicial notice can be taken of extra record 

information that is commonly known and can safely be assumed to be true). Thus, I find that 

MSHA’s increased caseload and investigative duties during the relevant time period provide 

non-frivolous justifications for the ten month delay between the conclusion of MSHA’s 

investigation and the decision to forward the case to the Office of Assessment. 

 Therefore, I find that non-frivolous reasons excuse the Secretary’s delay in notifying Mr. 

Carpenter of the proposed assessment. 

36 FMSHRC Page 2317
3. The Respondent did not suffer material prejudice from the Secretary’s delay. 

Although non-frivolous reasons explain the Secretary’s delay in serving the Respondent 

with a Notice of Assessment, this court must still determine if that delay nevertheless materially 

prejudiced the Respondent’s defense. Long Branch Energy, 34 FMSHRC 1991. 

The Respondent received actual notice of the proposed assessment and resulting default 

order on September 22, 2012. Resp. Br., 2. At this point, the Broad Run main office still 

maintained pre-shift inspection records at the mine site. Resp. Br.: Ex. 3, 2. After receiving the 

default order, the Respondent acted correctly in moving to reopen the matter with the 

Commission, but apparently failed to investigate the records available at the mine at that time. 

Thus, the Secretary’s mistake in addressing the notice of assessment did not prevent the 

Respondent from inspecting the Broad Run mine records before they were moved and/ or 

discarded in early 2013. Id. Additionally, Big River Mining idled the Broad Run mine almost 

immediately after the March 2010 inspection and laid off the majority of the workforce, 

including Mr. Carpenter, in April of 2010. Resp. Br.: Ex. 3, 2. As this layoff predated even the 

misaddressed January 3, 2011 preliminary notice by over six months, any difficulty involved in 

locating potential witnesses no longer working for Big River cannot be attributed to the 

Secretary’s address errors or delayed Notice of Assessment. 

Furthermore, although the Broad Run Mine main office was disassembled in early 2013, 

it appears that a substantial amount of records were retained and moved to Beckley, West 

Virginia. Resp. Br.: Ex. 3, 2. As Respondent has not yet made thorough discovery efforts 

regarding remaining pre-shift inspections, the Respondent may well locate records pertaining to 

the March 26, 2010 inspection. The Respondent states that he no longer remembers the names 

of many of the miners on his section at the time of the inspection. Resp. Br.: Ex. 1, 2. 

However, the Respondent did identify Jonathon Hooper as a crew member on the section during 

the March 26 inspection. Id. As this matter concerns straightforward allegations of ventilation 

control deficiencies, it appears that Mr. Carpenter would be able to present a sufficient defense 

based upon his own and Mr. Hooper’s testimony. For all these reasons, I conclude that the 

Respondent has not shown that the Secretary’s delay materially prejudiced his defense. Long 

Branch Energy, 34 FMSHRC 1992-93 (stating that dismissal due to prejudice is only 

appropriate when the operator has shown specific evidence of “substantial” prejudice). 

Thus, although the Secretary failed to successfully notify the Respondent of the 

proposed assessment within a reasonable time frame, that delay is explained by non-frivolous 

reasons, and the Respondent has not produced persuasive evidence of material prejudice. 

36 FMSHRC Page 2318
ORDER 

 

For the reasons detailed above, the Respondent’s Motion to Dismiss these proceedings 

and assessed civil penalties is DENIED. Due to the longstanding history of this case, the 

parties are hereby ORDERED to conduct discovery efforts into this matter on an expedited 

basis. The parties shall provide a detailed update to the Court regarding status of discovery 

efforts and prospects of settlement no later than Friday, September 12, 2014. 

 

/s/ David P. Simonton

 David P. Simonton 

Administrative Law Judge 

Distribution: 

Sarah Ghiz Korwan, Attorney, Preservati Law Offices, PLLC 

P.O. Box 1431 Charleston, WV 25325 

Jason S. Grover, Co-Counsel for Trial Litigation Office of Solicitor, U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor Arlington, VA 22209 

36 FMSHRC Page 2319
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH ST., SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

August 6, 2014 

ORDER OF DISMISSAL

This case is before me on a Notice of Contest filed by Pocahontas Coal Company 

pursuant to Section 105(d) of the Federal Mine Safety and Health. This contest is directed not at 

a particular citation or order but, rather, at a written notice of pattern of violations issued by 

MSHA pursuant to Section 104(e). On March 3, 2014 the Secretary filed a motion to dismiss for 

lack of jurisdiction. Pocahontas raises a number of arguments in its notice of contest, however, 

for reasons that follow, I find that the Commission is without jurisdiction to consider these 

arguments in the context of this proceeding and, accordingly, I DISMISS this case. 

On October 24, 2014 MSHA issued Written Notice No. 7219153 in which it notified 

Pocahontas that an alleged pattern of violations existed at Pocahontas’ Affinity Mine. The 

written notice included two groups of citations and orders which the Secretary had deemed 

“illustrative of this pattern of violations.” On November 26, 2013, Pocahontas Coal filed a 

notice of contest pursuant to Section 105(d) of the Act to contest the issuance of Section 

104(e)(1) Written Notice Number 7219153. Pocahontas Notice of Contest 1. On May 20, 2014, 

a decision dismissing that contest was issued in docket WEVA 2014-202-R. That order is 

currently on appeal to the Commission. Next, Pocahontas filed this notice of contest, to the same 

written notice of pattern of violation, but in this case the notice of contest was purportedly filed 

pursuant to 105(b)(2) of the Act, seeking temporary relief of the order. Pocahontas Notice of 

Contest 2. The arguments raised in this second notice of contest are identical to those raised in 

WEVA 2014-202-R and therefore, I restate my decision in the earlier contest case and dismiss 

this case for similar reasons. 

The question of whether the Commission has jurisdiction to hear a contest of a 104(e) 

written notice of pattern of violations has not been addressed by the Commission. However, two 

Commission judges have reached conflicting results on the question of jurisdiction to hear a 

contest to a written notice of pattern of violations. In Bledsoe Coal, Unpublished Order dated 

Nov. 11, 2011, Judge William Moran found that the Commission did have jurisdiction to hear a 

contest of a written notice of pattern of violations. Recently, in Brody Mining, LLC, 36 

FMSHRC ___, slip op. at 4, Docket No. WEVA 2014-81-R (Jan. 30, 2014), Chief 

POCAHONTAS COAL COMPANY, LLC, 

 Petitioner, 

v. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Respondent. 

 CONTEST PROCEEDING 

Docket No. WEVA 2014-569-R 

Written Notice No. 7219153; 10/24/2013 

Mine ID: 46-08878 

Mine: Affinity Mine 

36 FMSHRC Page 2320

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Administrative Law Judge Robert Lesnick found that the Commission was without jurisdiction 

to adjudicate the mine operator’s contest of the written notice of pattern of violations by itself. 

The passage of the Federal Mine Safety and Health Act of 1977 introduced the pattern of 

violations provision. The provision was designed “to provide an effective enforcement tool to 

protect miners when the operator demonstrates his disregard for the health and safety of miners 

through an established pattern of violations.” S. Rep. No. 95-181, at 32 (1977), reprinted in

Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 620 (1978). The provision grants the Secretary enforcement 

authority against mine operators that have a “pattern of violations of mandatory health or safety 

standards . . . which are of such nature as could have significantly and substantially contributed 

to the cause and effect of coal or other mine health and safety hazards[.]” 30 U.S.C. § 814(e)(1). 

The Secretary is charged with providing the mine operator with “written notice that such a 

pattern exists.” Id. (emphasis added). The provision then grants the Secretary authority to issue 

withdrawal orders, in a sequence which “parallels the . . . unwarrantable failure sequence[,]” for 

significant and substantial violations issued in the 90 days subsequent to the issuance of the 

written notice. See Id. at (e)(1)-(3); S. Rep. No. 95-181, at 33 (1977), reprinted in Legis. Hist. at 

621. The mine operator remains subject to the Secretary’s 104(e) withdrawal order power until 

such time that an inspection of the “entire mine” reveals no S&S violations. 30 U.S.C. § 

814(e)(3). 

The Mine Act does not define the term “pattern of violations” and, instead, instructs the 

Secretary to “make such rules as he deems necessary to establish criteria for determining when a 

pattern of violations of mandatory health of safety standards exists.” 30 U.S.C. § 814(e)(4). 

Accordingly, the Secretary has promulgated rules establishing those criteria. See 30.C.F.R. § 

104.2. Most recently, the Secretary, after determining that the previous version of the rules 

implementing the pattern of violations provision did not adequately achieve the intent of the 

Mine Act, promulgated new rules under part 104 of her regulations designed to simplify the 

existing POV criteria, improve the consistency in applying the POV criteria to mine operators, 

and increase the efficiency and effectiveness in issuance of a POV notice. Pattern of Violations; 

Final Rule, 78 Fed. Reg. 5056 (Jan. 23 2013). 

In Rushton Mining Co., 11 FMSHRC 759, 764 (May 1989) the Commission stated that it 

“is an agency created under the Mine Act with certain defined and limited administrative and 

adjudicative powers.” Given that the Commission is “an administrative agency created by 

statute, it cannot exceed the jurisdictional authority granted by Congress.” Black Beauty Coal 

Co., 34 FMSHRC 1856, 1860 (Aug. 2012) (citing Kaiser Coal Corp., 10 FMSHRC 1165, 1169 

(Sept. 1988)). Here, to allow a mine operator to file a notice of contest to a document that is a 

notice, as opposed to a citation, order or other enforcement document, would be to step outside 

the powers allowed by Congress. A review of the Mine Act reveals no statutory authority for the 

Commission to hear a contest to a notice of pattern of violations in the context of a dedicated 

proceeding. Further, the legislative history, the Secretary’s regulations, Commission case law, 

and the Commission’s Procedural Rules do not reveal any language which could be interpreted 

to grant the Commission jurisdiction to hear a contest of a written notice of pattern of violations. 

36 FMSHRC Page 2321
In addition, the Mine Act and legislative history make clear that written notices are 

distinct from citations and orders. The Commission has stated that “in considering the meaning 

of the Mine Act, we must ‘give effect to the unambiguously expressed intent of Congress.’” 

Revelation Energy, 35 FMSHRC 3333, 3337 (Nov. 2013) (quoting Chevron, U.S.A., Inc. v. 

Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)). Here, the distinction between a 

104(e) written notice and an order issued subsequent to that notice is clear. The language of the 

Act makes clear that the written notice is a separate document which must be issued prior to any 

order issued pursuant to section 104(e). Even if one could read some ambiguity into the 

language of the Act, Congress clearly intended to distinguish between written notices issued 

pursuant to section 104(e), which are meant to “indicate to both the mine operator and the 

Secretary that there exists at that mine a serious safety and health management problem, one 

which permits continued violations of safety and health standards,” and orders issued after the 

operator has been “advised” of the existence of the pattern via the written notice. S. Rep. No. 

95-181, at 32 (1977), reprinted in Legis. Hist. at 620. 

Contestant is not without remedy on the issue and may properly challenge the notice of 

pattern of violations in the context of a contest to an order issued under section 104(e) following 

the issuance of the written notice of pattern of violations.1

 The Secretary, in his answer to 

Pocahontas’ notice of contest, stated that, while there is “no statutory right to independently 

contest” the written notice, he “acknowledges that the validity of Notice No. 7219153 is at issue 

in the Contest Proceedings docketed at WEVA 2014-390-R, 391-R, 392-R, 393-R, 394-R, 395-

R, 396-R, 397-R and 398-R” and, “[a]s a component of these Contest Proceedings, the Secretary 

does not oppose the Commission’s review of the validity of Notice No. 7219153. The Secretary 

will address issues pertaining to the scope of this review in his answers to the 104(e) order 

notices of contest.” Sec’y Answer n. 2. 

Section 105(d) provides mine operators with the right to contest the issuance or 

modification of citations and orders. 30 U.S.C. § 815(d). The section then charges the 

Commission with affording an opportunity for a hearing and then issuing an order granting 

appropriate relief. “Section 105(d)‘s unambiguous[] . . . broad grant of . . . authority to direct 

‘other appropriate relief’” allows the Commission to address a notice of pattern of violations in 

the context of a contest to an order issued under section 104(e) following the issuance of the 

written notice of pattern of violations. See North American Drillers, LLC, 34 FMSHRC 352, 

356 (Feb. 2012). There are presently a number of 104(e) orders before me that are related to the 

notice of pattern of violations and, when those cases are heard, I will hear the arguments 

regarding the validity of the notice of pattern of violations issued to this mine. 

 1

 In a somewhat analogous situation, the Commission has acknowledged a mine operator’s right 

to contest the validity of a safeguard in the context of a contest to a citation issued pursuant to a violation 

of the underlying safeguard. See e.g., Southern Ohio Coal Co., 14 FMSHRC 1 (Jan. 1992). Commission 

judges have declined to review the validity of an underlying safeguard, which is issued via a “notice to 

provide safeguard,” prior to the issuance of a citation for a violation of the underlying safeguard. Beckley 

Coal Mining Co., 9 FMSHRC 1454 (Aug. 1987) (ALJ); Colorado Westmoreland, Inc., 10 FMSHRC 

1236 (Sep. 1988) (ALJ); Jim Walters Resources, Inc., Unpublished Order of Dismissal, Docket No. SE 

96-118-R, (Apr. 1996) (ALJ). 

36 FMSHRC Page 2322
In this case, Pocahontas relies upon section 105(b)(2) of the Mine Act as a basis for 

contesting the NPOV prior to adjudicating the 104(e) citations that have been issued as a result 

of the NPOV. Pocahontas asserts that this contest was filed raising the same arguments as the 

earlier notice of contest, but under a separate section of the Act in order to preserve its right to 

request temporary relief. Pocahontas indicates that it filed this contest to protect itself in the 

event the Commission finds no jurisdiction under Section 105(d) and that Pocahontas does not 

intend this challenge to be its primary means of challenging the NPOV. Pocahontas further 

claims that it is not seeking the temporary relief afforded by section 105(b)(2) of the Act but it is 

seeking permanent relief as set forth in its first notice of contest to the NPOV. Even if 

Pocahontas were seeking temporary relief, it does not meet the criteria for such relief. 

Section 105(b)(2) of the Mine Act (the “Act”), 30 U.S.C. § 815(b)(2), sets forth the 

conditions upon which temporary relief may properly be granted. In pertinent part, Section 

105(b)(2) grants the applicant a right to seek temporary, immediate relief from any order or from 

any order issued under section 104 with the exception of citations issued under section 104(a) or 

(f). The Court of Appeals, in applying this section of the Act to a 103(k) order determined that 

the provision applies to any order, not just those issued pursuant to section 104. Performance 

Coal, 642 F.3d 234 (D.C. Cir 2011). However, the section has not been applied to any 

enforcement document that is not an order or citation. Here, the mine was not issued an order 

but instead was issued a written notice. As discussed above, the written notice differs from other 

enforcement actions, and particularly orders and citations issued pursuant to the Act. 

Pocahontas argues that it is entitled to relief under 105(b) (2) because the Secretary noted 

that right in the federal register. I agree that the Secretary did refer to a mine’s right to seek 

temporary relief, but only after a 104(e) citation has been issued. The Secretary, in discussing 

the NPOV in the federal register noted that a mine may contest a violation issued pursuant to 

section 104(e) and the underlying NPOV once a citation or order has issued related to the NPOV. 

The Secretary did not concede that the notice of pattern alone is subject to temporary relief. 78 

Fed. Reg. 5056, 5066 (Jan. 23, 2013). 

Finally, Pocahontas argues that fundamental principles of due process are violated if it is 

not able to contest the written notice in its own proceeding and, instead, must wait until a 104(e) 

withdrawal order is issued and contested. Pocahontas Resp. 15-16. Specifically, Pocahontas 

asserts that the mere issuance of a notice of pattern of violations causes the operator to “suffer[] 

tangible consequences flowing from that designation alone[,]”and that absent a “prompt postdesignation review[,]” it is deprived or a significant property interest in violation of 

Constitutional due process requirements. Id. at 16, 19. Pocahontas cites to the standard 

language about due process and argues that the mine is deprived of a property interest prior to a 

hearing and that deprivation is not outweighed by a need of the government. I disagree. Here, 

the Secretary’s need to assure a safe and healthy working environment for miners at a mine that 

is alleged to have a history of serious violations, outweighs the need of the mine to be heard 

immediately. Additionally, the mine has another immediate remedy, that of immediately 

contesting any order issues after the notice of pattern of violations and have that order heard 

while raising all of the issues associated with the underlying notice. The Secretary has 

frequently worked with an operator to issue an order immediately when there is a dispute over a 

roof control or ventilation plan so that the matter may be heard expeditiously. 

36 FMSHRC Page 2323
Due process claims require the Commission to consider three factors when a deprivation 

to a property interest occurs: (1) "the private interest that will be affected by the official action;" 

(2) the risk of an "erroneous deprivation of such interest through the procedures used" and the 

value of additional or substitute procedural safeguards; and 3) the Government's interest, 

including ''the fiscal and administrative burdens that the additional or substitute procedural 

requirement would entail." Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Due process, as 

described by the Court in Mathews, is “not a technical conception with a fixed content unrelated 

to time, place, and circumstances,” and further, “is flexible and calls for such procedural 

protections as the particular situation demands.” Id.(citing Cafeteria Workers v. McElroy, 367 

U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961); Morrissey v. Brewer, 408 U.S. 471, 

481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) 

Pocahontas states that “once a POV notice is issued, an inspector’s suspicion of an S&S 

violation goes from being a mere allegation that may be challenged before an ALJ (with due 

process protections) to being an automatic withdrawal order that could take months-or years-for 

the operator to challenge.” Pocahontas Resp. 16. Further, it asserts that the issuance of a notice 

triggers “enhanced SEC reporting requirements[,]” which in turn can have “obvious, adverse 

consequences on an operator’s business”. Id. at 19. 

I find Pocahontas’ due process argument to be without merit. Pocahontas initially sought 

to expedite both this proceeding and the contest proceedings for the 104(e) orders that followed 

the issuance of the notice of pattern of violations. In response to that request, I set the cases for 

hearing. However, subsequently the parties moved for stays of the 104(e) cases, and, with regard 

to the instant matter of the written notice, Pocahontas asserted that “[b]efore determining 

whether the pattern of violations rule was validly applied to Pocahontas in WEVA 2014-202-R, 

the Commission will need to issue its decision in Brody Mining, LLC, to inform the Secretary 

and the regulated community as to the extent the rule may be used in future enforcement 

proceedings.” Pocahontas Motion to Stay Further Adjudication of Enforcement Action 7276509, 

dated January 31, 2014. Given the obvious conflict between Pocahontas’ two positions; proceed 

expeditiously versus wait for the Commission to rule in another similar matter, I reject its 

argument that dismissal of this matter will amount to a violation of its right to due process. 

Further, if Pocahontas had wished to proceed expeditiously on its challenge to the notice of 

pattern of violations, it could have selected one of the multiple 104(e) orders to advance to 

hearing in a more expeditious manner. 

This docket contains no citations or orders, and rather only the notice of pattern of 

violations that was issued to the mine, prior to the issuances of any 104(e) citation or order. 

Therefore, the above captioned contest proceeding is DISMISSED. 

/s/ Margaret A. Miller

 Margaret A. Miller 

 Administrative Law Judge 

36 FMSHRC Page 2324
Distribution: 

Benjamin Chaykin, Office of the Solicitor, 1100 Wilson Boulevard, 22nd Floor West, Arlington, 

Virginia 22209-2247 

Robert Huston Beatty, Jr., Dinsmore & Shohl, LLP, P.O. Box 11887, 900 Lee Street, Suite 600, 

Charleston, WV 25339 

36 FMSHRC Page 2325
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-5267/FAX 303-844-5268 

August 7, 2014 

POCAHONTAS COAL COMPANY, INC., 

Contestant, 

v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent. 

 CONTEST PROCEEDINGS 

Docket No. WEVA 2014-390-R 

Order No. 9002712; 12/09/2013 

Docket No. WEVA 2014-391-R 

Order No. 9002713; 12/09/2013 

Docket No. WEVA 2014-392-R 

Order No. 9002714; 12/09/2013 

Docket No. WEVA 2014-393-R 

Order No. 9002715; 12/09/2013 

Docket No. WEVA 2014-394-R 

Order No. 9002716; 12/10/2013 

Docket No. WEVA 2014-395-R 

Order No. 3576153; 12/19/2013 

Docket No. WEVA 2014-396-R 

Order No. 9002720; 12/22/2013 

Docket No. WEVA 2014-397-R 

Order No. 9002721; 12/22/2013 

Docket No. WEVA 2014-398-R 

Order No. 9002725; 12/30/2013 

Mine ID: 46-08878 

Mine: Affinity Mine 

36 FMSHRC Page 2326

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ORDER GRANTING IN PART AND DENYING IN PART SECRETARY’S MOTION TO 

LIMIT DISCOVERY

Before: Judge Miller 

This case is before me upon notices of contest under section 105(d) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 815(d). On July 17, 2014, the Secretary filed a 

motion to limit discovery as a result of receiving a list of 11 potential areas of inquiry for the 

depositions of Kevin Stricklin and David Mandeville from Contestant.1 In his motion, the 

Secretary argues that Contestant’s proposed depositions exceed the scope of discovery and seek 

irrelevant information, that Contestant improperly seeks to discover privileged information, and 

that Stricklin and Mandeville should be protected from depositions due to their status as highranking government officials. Contestant has filed a response in opposition. For the reasons set 

forth below, I GRANT IN PART and DENY IN PART the Secretary’s motion. 

Scope of Discovery

The Secretary argues that the issue to be decided by the Commission in these cases is 

whether the citations and orders listed in the Notice of Pattern of Violations (NPOV) establish a 

pattern and argues that the scope of discovery should be limited to matters pertaining to the 

specific facts and circumstances of the citations and orders listed in the NPOV. Sec’y Mot. at 13. 

The Secretary also maintains that the 28 violations identified in the NPOV that are final fall 

outside the scope of discovery. Id. n.6. However, the Secretary also states that “factual issues 

relevant to the validity of the NPOV are clearly within the scope of discovery.” Sec’y Mot. at 2. 

Finally, the Secretary argues that the factual inquiries submitted by Contestant sought through 

the depositions of Strickland and Mandeville seeks information about MSHA’s internal 

deliberations and decision-making process as to the NPOV issued to the mine. 

1

 The list of potential areas given to the Secretary on May 19, 2014 are as follows: 

1. Factual inquiry relating to screening criteria data and POV Written Notices.

2. Factual inquiry relating to identifying enforcement actions in POV Written

Notices.

3. Factual inquiry relating to mitigating circumstances.

4. Factual inquiry relating to development and approval of Corrective Action Plans.

5. Factual inquiry relating to citations/orders in a POV Written Notice and Corrective

Action Plans.

6. Factual inquiry into MSHA’s POV Mitigating Circumstances Determination Form.

7. Factual inquiry into identifying a Pattern of Violations.

8. Factual inquiry into the use of other enforcement options for POV determinations.

9. Factual inquiry regarding pre March 25, 2013 citations/orders and POV screening

criteria data.

10. Factual inquiry relating to POV Panels.

11. Factual inquiry into MSHA’s regulatory economic analysis.

36 FMSHRC Page 2327
Pocahontas agrees that the issue in these cases is whether the underlying NPOV was 

properly issued to Pocahontas and argues that discovery in this matter should be broader than the 

Secretary asserts and should include inquiries into each of the 11 subject areas listed in its 

response to the Secretary. The mine states that the list of inquiries is not exhaustive and frames 

the list in general terms. Contestant particularly argues that it should be able to inquire into the 

mitigating factors that were or were not considered by the Secretary to determine that this mine 

should be placed on the pattern of violations. 

 Commission Procedural Rule 56(b) states that “[p]arties may obtain discovery of any 

relevant, non-privileged matter that is admissible evidence or appears likely to lead to the 

discovery of admissible evidence.” A judge may “limit discovery to prevent undue delay or to 

protect a party or person from oppression or undue burden or expense.” 29 C.F.R. § 2700.56(c). 

The citations that Pocahontas contested were issued pursuant to sections 104(e)(1) and 

(2) of the Mine Act. Under section 104(e)(1), [i]f an operator has a pattern of violations of 

mandatory health or safety standards . . . which are of such nature as could have significantly and 

substantially contributed to the cause and effect of coal or other mine safety and health hazards, 

he shall be given written notice that such pattern exists.” 30 C.F.R. § 104(e)(1). MSHA posted 

screening criteria that it uses to perform the pattern of violation review. 30 C.F.R. § 104.2(b). 

Once a mine meets the requirements of the initial screening criteria, MSHA uses eight different 

pattern criteria in order to determine if the mine actually has a pattern of S&S violations.2

 § 

104.2(a). 

The Secretary issued a NPOV to Contestant based on a number of S&S citations, some of 

which are still pending before the Commission. On May 20, 2014, I dismissed Pocahontas’ 

contest of the written notice, WEVA 2014-202, finding that the Commission did not have 

jurisdiction to adjudicate a contest of a written notice without an accompanying 104(e) citation. 

2

 The pattern criteria includes: 

(1) Citations for S&S violations; 

(2) Orders under section 104(b) of the Mine Act for not abating S&S 

 violations; 

(3) Citations and withdrawal orders under section 104(d) of the Mine Act, 

resulting from the mine operator's unwarrantable failure to comply; 

(4) Imminent danger orders under section 107(a) of the Mine Act; 

(5) Orders under section 104(g) of the Mine Act requiring withdrawal of miners 

 who have not received training and who MSHA declares to be a hazard to 

themselves and others; 

(6) Enforcement measures, other than section 104(e) of the Mine Act, that have 

 been applied at the mine; 

(7) Other information that demonstrates a serious safety or health management 

 problem at the mine, such as accident, injury, and illness records; and 

(8) Mitigating circumstances. 

30 C.F.R. § 104.2(a). 

36 FMSHRC Page 2328
Pocahontas contests the above listed citations and orders issued under sections 104(e)(1) and (2) 

in addition to the validity of the NPOV and these two areas are now subject of discovery here. 

Both parties assert and I agree that the inquiry here is into the N POV that was issued to 

Pocahontas; the inquiry, therefore, is not a broad, general inquiry, but is limited to the cases 

related to this specific POV that have been filed and remain active. 

As the Secretary stated, the facts related to the pending citations and orders listed in the 

NPOV are relevant and discoverable. However, facts relating to the 28 citations and orders 

listed in the NPOV that are final, for the purposes of discovery, are only relevant and 

discoverable insofar as they relate to MSHA’s determination that they are part of a pattern of 

violations. 

Contestant provided a list of the 11 potential areas of inquiry for depositions which are 

set forth in the Secretary’s motion and Contestant’s response; I find that facts related to the 

majority of these areas as they pertain directly to Pocahontas, are relevant and within the scope 

of discovery. In most instances, however, the factual inquiries must be made in the context of 

these cases and not general inquiries, particularly about other mines that may or may not have 

been considered for the NPOV. I do not know what Pocahontas seeks with number 8 on the list 

of inquiries, which is “factual inquiry into the use of other enforcement options for POV 

determinations.” To the extent MSHA engaged in some other enforcement option for this mine, 

the facts may be relevant, but I see no other inquiry that would relate to this request that is 

relevant to these cases. In addition, a number of the inquiries, while couched in terms of 

“factual” don’t appear to be designed for inquiry into facts. For example, the economic analysis 

used by MSHA is a matter of public record and was provided to Contestant. Factual inquiry into 

the economic impact on this mine made when the NPOV was issued is relevant, but any other 

inquiry is not. 

Two of the arguments Contestant made are that MSHA’s issuance of the NPOV to this 

mine was arbitrary and capricious and that it did not follow its own rules during its decisionmaking process. In order to determine this, the Court must know which facts MSHA considered 

when making its decision and the listed areas will provide this information.3

 Facts related to 

these areas may also prove useful if the court must determine de novo whether a pattern of 

violations exists. 

The Secretary also brought to the Court’s attention that notices of deposition served by 

the Contestant included WEVA 2014-202-R, which was previously dismissed and WEVA 2014-

569-R, which is similarly situated to WEVA 2014-202-R because it is also a written notice. I 

find that the Commission does not have jurisdiction to adjudicate these types of cases. 

Therefore, these docket numbers shall be stricken from the notices of deposition served on the 

Secretary as they are outside the scope of discovery. 

 3

 Pocahontas’ assertion in its response that the POV panel only discussed three potential 

mitigating circumstances when it provided numerous mitigating circumstances is precisely the 

reason why the information it intends to seek in depositions is relevant and discoverable. Cont. 

Resp. at 23-24. 

36 FMSHRC Page 2329
Privileged Information

 The Secretary maintains, based on the list of potential areas of inquiry it submitted to him 

on May 19, 2014, that Pocahontas seeks information about the internal thoughts, processes, and 

opinions of those who participated in the POV review process. While the Secretary cites 

deliberative process cases related to the production of documents and the Freedom of 

Information Act’s (FOIA) Exemption 5,4

 the case law can easily be applied to producing 

deliberative process information orally. To qualify under Exemption 5, 

a document must satisfy two conditions: its source must be a government agency, 

and it must fall within the ambit of a privilege against discovery under judicial 

standards that would govern litigation against the agency that holds the document. 

This Court's prior Exemption 5 cases have addressed the second condition, and 

have dealt with the incorporation of civil discovery privileges. So far as they 

matter here, those privileges include the privilege for attorney work product and 

the so-called “deliberative process” privilege, which covers documents reflecting 

advisory opinions, recommendations, and deliberations that are part of a process 

by which Government decisions and policies are formulated. 

Dep’t of Interior v. Klamath Water Users Protective Assn, 532 U.S. 1, 2 (2001) (citing NLRB v. 

Sears Roebuck & Co., 421 U.S. 132, 150 (1975)); In Re: Contests of Respirable Dust Sample 

Alteration Citations, 14 FMSHRC 987 (June 1992). The purpose of the privilege is to “prevent 

injury to the quality of agency decisions” and to protect “open and frank discussion among those 

who make [decisions] within the government.” Sears, 421 U.S. at 150; Klamath, 532 U.S at 2-3. 

 

 As is evident from the list provided by Pocahontas and its response in opposition, it 

appears to seek only factual information related to the 11 areas. Cont. Resp. at 22. The 

Secretary has provided no evidence that suggests Pocahontas intends to ask questions related to 

the deliberation process. “The fact that objections may be raised to specific questions in a 

deposition does not provide a sufficient basis to bar the deposition[s] altogether.” Rail Link, Inc., 

20 FMSHRC 181, 182 (Jan. 1998) (ALJ). The Secretary concedes that the facts available to him 

regarding the citations and orders stated in the NPOV are not privileged. Sec’y Mot. at 18. I also 

find that other facts related to the above listed areas of inquiry are not privileged. However, I 

agree with the Secretary that internal deliberations leading up to the decision to issue the NPOV, 

including the weight given to the different pattern criteria, and thoughts and opinions of the 

agency’s employees are privileged.5

 I further agree that many of Pocahontas’ arguments in 

challenging the NPOV are legal arguments that relate to the promulgation of the POV rule and 

 4

 Exemption 5 of FOIA states, “[t]his section does not apply to matters that are-- . . . 

(5) inter-agency or intra-agency memorandums or letters which would not be available by law to 

a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5) (2000). 

5

 I decline to develop a system for dealing with the assertion of the deliberative process 

privilege during depositions as Contestant suggests. Cont. Resp. 27-28. I presume that Counsel 

for Pocahontas is aware of the case law regarding inquiries related to the deliberative process and 

expect them to consider that during the depositions. 

36 FMSHRC Page 2330
therefore any inquiry into the rule in general that relates to agency policy, rule-making, or 

constitutional challenges would not be factual and would be subject to privilege. I assume, given 

the status of the POV cases pending before the Commission and the Sixth Circuit, that these 

issues have been discovered, argued, and briefed and that any arguments made in this case would 

follow those made in the earlier cases. Therefore, as the parties agree, the issues here focus on 

the application of the rule to Pocahontas and not the promulgation of the rule itself. 

Protection from Depositions 

 The Secretary argues that Kevin Stricklin, the Administrator of Coal Mine Safety and 

Health, and David Mandeville, MSHA’s District 4 Manager, should be protected from 

participating in depositions due to their status as high-ranking government officials.6 He states 

that the time required “preparing for and defending” Stricklin and Mandeville would lead to a 

“significant withdrawal of much-needed attention to their administrative and supervisory 

functions.” Sec’y Mot. at 20. 

 The Commission has held that “high-level executive department officials may not be 

required to give oral testimony by deposition or at trial except in extraordinary circumstances.” 

Respirable Dust, 14 FMSHRC at 241; Simplex Time Recorder Co., 766 F.2d 575, 586 (D.C. Cir. 

1985). “Extraordinary circumstances may be established where the executive sought to be 

deposed has relevant information not available from any other source[,]” but “where the agency 

has or is willing to respond by . . . making lower-level officials available for deposition, there is 

no justification for requiring the testimony of an agency head or high level agency official. 

Respirable Dust, 14 FMSHRC at 241, 242; Sweeny v. Bond, 669 F.2d 542, 546 (8th Cir.), cert. 

denied, 459 U.S. 878 (1982). 

 The Secretary states that Stricklin and Mandeville were not the issuing inspectors for the 

citations and orders identified in the NPOV and have no first-hand knowledge of the conditions 

cited. He offered to provide the issuing inspectors of the eight remaining NPOV S&S violations 

for depositions. Sec’y Mot. at 21. Given that the issues in this case go beyond the fact of the 

citations and the information provided by the issuing inspectors, I find this argument is without 

merit. Someone with MSHA who has knowledge of the facts that caused this mine to receive an 

NPOV should be available to the mine for discovery purposes. 

 With regard to the request to depose Stricklin, Commission precedent has alluded to the 

fact that the Administrator of Coal Mine Safety and Health is a high-level government official 

and requiring his attendance at a deposition would disrupt the government’s function. Respirable 

Dust, 14 FMSHRC at 243 (denying a motion for a protective order of the former Administrator 

of Coal Mine Safety and Health because he was retired at the time of the motion and no 

disruption of government functions would occur). Stricklin is responsible for the oversight of 

thousands of underground and surface coal mines across the country. Allowing his deposition to 

 6 The Secretary also raised objections to notices of depositions for Douglas Parker, 

Stephen Weatherford, Jay Mattos, and David Morris for the same reasons. Sec’y Mot. at 2. 

However, the Secretary noted that the earlier deposition notices have become moot and therefore 

I will not rule on them until it becomes a relevant matter. 

36 FMSHRC Page 2331
be taken would remove him from important official tasks. In addition, the Secretary states that 

he has no first-hand knowledge of the NPOV citations and orders and the Secretary provided a 

number of documents related to the POV review process for this mine. While the Secretary did 

not specifically address Stricklin’s knowledge of the decision to issue the NPOV to Pocahontas, 

the Contestant did not provide any information that suggests he is the only one with this 

knowledge.7 Therefore, I find that Stricklin is a high-ranking agency official and should be 

protected from depositions in these cases. 

 Mandeville, the MSHA district manager for the district in which the Pocahontas mines 

are located, is not in a position to be considered a high-ranking official privileged to protection 

from a deposition.8 See Rail Link, Inc., 20 FMSHRC 181, 182 (denying the Secretary’s motion 

for a protective order for depositions of an MSHA District Manager and an Assistant District 

Manager because “they are not the type of high level officials that require such protection”); Jim 

Walter Resources, 26 FMSHRC 317 (2004) (ALJ) (denying the Secretary’s motion for a 

protective order from depositions for the Assistant Administrator of Coal Mine Safety and 

Health and the MSHA District 11 Manager, stating, “they are not the type of ‘top government 

officials’ to whom the protection is usually extended”). Moreover, as the mine is in 

Mandeville’s District and Mandeville supervises the inspectors that wrote the citations that 

remain for adjudication, he may have relevant information pertaining to the citations and orders. 

He could also have information related to the decision to issue an NPOV to Pocahontas as the 

Secretary states that “the Administrator directed district 4 to obtain any mitigating circumstances 

from Pocahontas.” Sec’y Mot. at 22; Cont. Resp. at 19; See, e.g., Buck Creek Coal, 17 

FMSHRC 845 (1995) (ALJ) (allowing the depositions of 19 people, including managers from 

district offices, and stating that the “fact that these individuals are managers does not mean that 

they do not have knowledge of the facts underlying these cases or information that might lead to 

the discovery of admissible evidence”). In addition, the Secretary did not provide any persuasive 

arguments that the proposed deposition would be oppressive or subject Mandeville or MSHA to 

undue burden or expense. 

WHEREFORE, the Secretary’s motion to limit discovery is GRANTED IN PART and 

DENIED IN PART. 

 7

 Pocahontas states, “both Stricklin and Mandeville have knowledge of the relevant facts 

regarding the issuance of the POV notice.” Cont. Resp. at 19. It later asserts that it is “entitled to 

ask the only parties with first-hand knowledge of the facts that permitted MSHA to issue this 

enforcement action.” Cont. Resp. at 25. This assertion indicates that Stricklin is not the only one 

with first-hand knowledge – that Mandeville has first-hand knowledge also. In addition, the 

POV panel was the entity that was responsible for submitting the recommendation to Stricklin 

and may therefore be more appropriate parties with knowledge of what was and was not 

considered. Id.

8

 The court in Simplex identified several “top government officials” that other courts 

refused to allow examination of, including the Governor of Missouri, an Administrator of a 

government agency, parole board members, and the Comptroller of the Currency. Simplex Time 

Recorder Co., 766 F.2d at 586-87. An MSHA District Manager, though having an important 

position within the agency, falls short in magnitude to the examples above. 

36 FMSHRC Page 2332
 It is ORDERED that the 28 final citations and orders listed in the NPOV are only 

relevant and discoverable insofar as they relate to MSHA’s determination that they are part of a 

pattern of violations. 

It is ORDERED that WEVA 2014-202-R and WEVA 2014-569-R be stricken from the 

notices of deposition that the Contestant provided to the Secretary. 

It is ORDERED that the factual information sought in the May 19, 2014 list of possible 

areas of inquiry, if relevant, is discoverable with the limitations listed above, but that any 

information related to the internal deliberative process of deciding to issue the NPOV is not. 

The Secretary’s request to protect David Mandeville from depositions in the above cases 

is DENIED. 

It is ORDERED that Kevin Stricklin be protected from deposition in the above cases. 

/s/ Margaret A. Miller

Margaret A. Miller 

Administrative Law Judge 

Distribution: 

Benjamin D. Chaykin, Anthony Jones, R. Alan Kelly, Anh LyJordan, Office of the Solicitor, 

U.S. Department of Labor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209 

Robert Beatty, Jr., Dinsmore & Shohl, LLP, P.O. Box 11887, 900 Lee Street, Suite 600, 

Charleston, WV 25339 

36 FMSHRC Page 2333
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

August 12, 2014

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner

v.

QUALITY MATERIALS and CDG 

 MATERIALS, INCORPORATED,

 Respondents

CIVIL PENALTY PROCEEDING

Docket No. WEST 2009-557-M

A.C. No. 04-05475-175804-01

Docket No. WEST 2009-558-M

A.C. No. 04-05475-175804-02

Docket No. WEST 2009-866-M

A.C. No. 04-05475-184059

Mine: Rancho Plant

DECISION

Appearances: Matthew M. Linton, Esq., U.S. Dept. of Labor, Office of the Solicitor, 

Denver, Colorado, for Petitioner;

Joshua Schultz, Esq., Law Office of Adele L. Abrams, P.C., Beltsville, 

Maryland, for Respondents.

Before: Judge Bulluck

These cases are before me upon Petitions for Assessment of Civil Penalty filed by the

Secretary of Labor (“Secretary”) on behalf of his Mine Safety and Health Administration

(“MSHA”) against Quality Materials (“Quality”), pursuant to section 105(d) of the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. § 815. The Secretary seeks a total civil penalty in the

amount of $47,700.00 for eight violations of his mandatory safety standards.

A hearing was held in Riverside, California. The following issues are before me: 

(1) whether Respondent violated the standards; (2) whether the violations were significant and

substantial, where alleged; (3) whether the violations were attributable to the level of negligence

alleged; and (4) whether the violations were attributable to Quality’s unwarrantable failure to

comply with the standards, where alleged. The parties’ Post-hearing Briefs are of record.

After the hearing, the Secretary filed an unopposed Motion to Amend Petitions to include

CDG Materials, Incorporated (“CDG”), as a Respondent. The Secretary asserts that Quality and

CDG were a unitary operator, as defined by the Commission, since Quality and CDG shared

36 FMSHRC Page 2334

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:
1

 Pickett was retired from MSHA at the time of the hearing. Tr. I: 69. 

ownership, management, and conducted interrelated operations. See Berwind Natural Res.

Corp., 21 FMSHRC 1284, 1317 (Dec. 1999). The record indicates that Quality and CDG are

owned by Dave Beck and share the same address and equipment. Tr. I: 172, 202-03; Ex. P-45. 

Therefore, I find that the entities constitute a unitary operator, and the Secretary’s Motion is

GRANTED. Accordingly, all references to “Quality” or “Quality Materials” refer to

Respondents, collectively. 

For the reasons set forth below, I AFFIRM the citations and orders, as issued, and assess

penalties against Respondent.

I. Stipulations

The parties stipulated as follows:

1. The orders and citations issued in these matters were issued on the dates indicated on

each.

2. The inspector whose signature appears in block 22 of the orders and citations at issue

was acting in his official capacity as an authorized representative of the Secretary of Labor.

3. The proposed penalties for each order and citation are listed on the Exhibit A for each

of the petitions. 

4. The Secretary incorporates by reference all of Respondents’ admissions in written

discovery. 

5. Respondents demonstrated good faith in abating the violations.

6. The exhibits to be offered by the parties are authentic.

7. Should the Court determine that MSHA had jurisdiction to issue the citations and

orders, Quality agrees to waive its right to present evidence for Citation Nos. 7999983, 7999984

and 7999985, knowing that it will fully accept these citations, as written, and the penalties as

assessed by MSHA.

Tr. I: 10-11.

II. Factual Background

On December 29, 2008, MSHA special investigator Randy Horn and MSHA investigator

trainee Timothy Pickett were assigned to inspect a portable crushing mine site in the San

Bernardino area. Tr. I: 19-20, 22, 72.1

 Horn and Pickett drove to that mine site, passing the

Rancho Plant along the way but, upon arrival, discovered that the mine was abandoned. Tr. I:

36 FMSHRC Page 2335
2

 The citation for the unexamined fire extinguisher was issued on December 30, 2008. 

22. Horn turned his vehicle around and, as he was advising his supervisor by telephone that the

mine was abandoned, he could see two miners several hundred yards away standing on top of a

cone crusher, 12 to 14 feet in air. Tr. I: 23, 79. Horn saw that neither miner was wearing fall

protection, and that one was not wearing a hard hat and safety glasses. Tr. I: 79, 134, 137. 

Believing the miners to be in danger, Horn drove onto the Rancho Plant site and proceeded

toward the cone crusher. Tr. I: 23. As Horn and Pickett pulled up to the crusher and exited their

vehicle, Michael Medcraft and John Holmes descended from the crusher, and Medcraft

approached Horn. After a discussion with Medcraft, Horn issued citations and orders to Quality

for Medcraft’s and Holmes’ failure to wear fall protection, and Medcraft’s failure to wear a hard

hat and safety glasses, while operating the crusher. Tr. I: 78-79, 131, 137; Ex. P-1, P-4, P-6. 

Horn proceeded to inspect the crusher and, observing that the tail pulley was unguarded, issued

an order to Quality for lack of guarding. Tr. I: 141; Ex. P-8. He also issued citations to Quality

for failure to notify MSHA prior to resuming operations following a plant shutdown, an

inoperative emergency brake on a front-end-loader, and an unexamined fire extinguisher in the

storage trailer.2

 

On January 12, 2009, Horn returned to the Rancho Plant to terminate the citation for the

inoperative emergency brake on the front-end-loader. Tr. I: 154. Once again, he observed the

crusher’s tail pulley unguarded, and issued another order to Quality for failure to guard the

equipment. Tr. I: 154-55; Ex. P-19. 

III. Findings of Fact and Conclusions of Law

A. Jurisdiction

Quality contests MSHA’s jurisdiction over the Rancho Plant during the December 29,

December 30, and January 12, 2009 inspections. It argues that the crusher was being operated to

compact a wall comprised of previously processed material, which is outside of MSHA’s

jurisdiction. The Secretary argues a contrary position, that MSHA had enforcement authority

because, at the time of the inspections, Quality was crushing native material extracted from the

earth and, therefore, milling, as defined in section 3(h)(1) of the Act and the Mine Safety and

Health Administration - Occupational Safety and Health Administration Interagency Agreement

(“Interagency Agreement”). 30 U.S.C. § 802(h)(1); Interagency Agreement, 44 Fed. Reg.

22,827 (April 17, 1979).

Horn testified that he observed rocks, gravel and sand, native material that had not been

previously processed or used by industry, on the crusher belt and ground around the crusher. 

Tr. I: 25-26. He stated that his initial observation of the native material being dumped into the

crusher was from a vantage point several benches down, and that his observation was confirmed

when he arrived on the scene and saw the material in the machine and on the ground. 

Tr. I: 65-66. He opined that native material, which is often round and in smaller fragments, is

visually distinguishable from larger, square concrete or cobblestone, with angled faces and

jagged edges mixed with more powder and dust. Tr. I: 37, 53, 65. Viewing photographs of

36 FMSHRC Page 2336
spillage from the crusher at hearing, he testified that the photographs showed native rock and no

concrete or cobblestone. Tr. I: 30-31, 34; Ex. P-10B, P-21B. Pickett corroborated Horn’s

testimony, opining that round virgin material was being fed into the crusher, and that he did not

observe anything resembling concrete or cobblestone. Tr. I: 73-75. 

David Beck, owner of Quality Materials, opined that the company was under MSHA’s

jurisdiction until August 27, 2008, the date it notified MSHA that the mine was temporarily

closed. Tr. I: 172, 175, 176; Ex. R-16. According to Beck, in December 2008, Beck’s friend,

Jerry Martin, had asked him as a favor to compact a cobblestone and concrete wall, so that he

could spread the material over his property. Tr. I: 177-79. Beck opined that the rock that Horn

had identified as native material being crushed by Quality was, in actuality, product left over

from a previous crushing operation on the same site. Tr. I: 182. Beck admitted, however, that he

was not present at the Rancho Plant on December 29, and that he was on-site January 12 only

during the later part of the day. Tr I: 188.

Jerry Martin, a self-employed construction worker, and admitted friend of Beck’s, similar

to Beck’s account, testified that he had asked Quality to crush a wall made of rocks, cement, and

mortar so that he could spread the material over his driveway. Tr. II: 6-8, 11-12. By his

account, the wall had been built previously into a structure on his property, and he had removed

it using his backhoe and hauled it to the Rancho Plant in his dump truck. Tr. II: 8-9. Martin

testified that he did not pay Quality or Beck for this work, but that he had been a customer of

CDG Materials from 2004 to 2008. Tr. II: 10-11; Ex. P-43. Loader operator Michael Medcraft,

and operations manager Tim Becker corroborated Martin’s testimony, that Quality was recrushing material that Martin had dropped off, and that Quality was not extracting or crushing

any raw material. Tr. II: 13-15, 23-24. 

The Act confers MSHA with jurisdiction over any coal or other mine, which is broadly

defined. 30 U.S.C. § 803; Jerry Ike Harless Towing, Inc., 16 FMSHRC 683, 687 (Apr. 1994). 

Section (3)(h)(1) of the Act defines a “mine,” in pertinent part, to include “structures, facilities,

equipment, machines, tools, or other property . . . used in or to be used in, . . . the work of

extracting . . . minerals . . . or . . . the milling of such minerals, or the work of preparing . . .

minerals . . . .” 30 U.S.C. § 802(h)(1). Milling is defined in the Interagency Agreement as the

“art of treating the crude crust of the earth to produce therefrom the primary consumer

derivatives.” 44 Fed. Reg. at 22,827. “Milling” can consist of various processes including

crushing, grinding, pulverizing and/or sizing. Id. 

Quality admits that if it had been crushing extracted native material during the subject

inspections, it would have been milling as defined by the Act, and MSHA would have had

jurisdiction. Resp’t Br. at 6-7. Likewise, the Secretary does not contend that MSHA had

jurisdiction if Quality had been processing recycled material. Therefore, the question of

jurisdiction is a factual one, i.e., whether Quality had been processing recycled or native

material.

I credit Horn’s and Pickett’s testimony that virgin material is readily distinguishable from

recycled material, and that they observed native material going through the crusher. Quality

presented no physical or documentary evidence to support its contention that it was crushing

36 FMSHRC Page 2337
3

 Pursuant to my finding of MSHA jurisdiction, Quality withdraws contest of Citation

Nos. 7999983, 7999984 and 7999985, and agrees to pay-in-full the $100.00 penalty proposed by

the Secretary for each violation. Resp’t Br. at 4; Tr. I: 10-11. I note that the Petition filed for

docket WEST 2009-558-M contains a mathematical error in calculating the penalty for Citation

No. 7999984; the correct amount is $100.00, rather than $112.00.

4

 30 C.F.R. § 56.15005 provides that: “Safety belts and lines shall be worn when persons

work where there is danger of falling; a second person shall tend the lifeline when bins, tanks, or

other dangerous areas are entered.” 

recycled material from a wall on Martin’s property. Beck opined that evidence of recycled

cobblestone and concrete would probably have been present around the crusher, mixed in with

virgin rock. Tr. I: 186-87. However, neither Beck nor any other Quality witness identified any

cobblestone or concrete in the photographs, and Beck only guessed that the concrete, which they

had allegedly been crushing, was “probably” or “possibly” on top of virgin rock. Tr. I: 186-87;

Ex. P-10A, P-10B. When examining the rock underneath the crusher, Beck testified that it did

not look like the material that Quality had been crushing for Martin, and he identified it as 

product left over from a previous crushing operation that had taken place on the same site. 

Tr. I: 182; Ex. P-10A, P-10B. The absence of any identification of cobblestone or concrete,

combined with Horn’s and Pickett’s observation of native material, demonstrate that Quality was

engaged in milling raw material. Moreover, I note that neither Medcraft at the mine site, nor

Quality’s operations manager Tim Becker at their post-inspection conference, informed Horn of

the alleged favor for Martin. Tr. I: 41, 94, II: 20. Finally, assuming that the job was actually for

Martin, his status as a frequent customer, together with the inspectors’ observations, make it

highly likely that Quality was conducting business as usual, rather than doing Martin a favor;

thus, his testimony in support of his friend, Beck, is unpersuasive. Tr. II: 6, 11-12; Ex. P-43. 

Therefore, I find that Quality was crushing native material, and was subject to MSHA’s

jurisdiction under sections 3(h)(1) and 4 of the Act.3

B. Citation No. 7999979

Inspector Horn issued 104(d)(1) Citation No. 7999979, alleging a “significant and

substantial” violation of section 56.15005 that was “reasonably likely” to cause an injury that

could reasonably be expected to be “fatal,” and was caused by Quality’s “reckless disregard” and

“unwarrantable failure” to comply with the standard.4

 The “Condition or Practice” is described

as follows:

The mine foreman and a miner were standing on the running cone crusher

adjusting ring without fall protection. The adjusting ring is approximately 12 to

13 feet above the ground level. The ground was covered with rocks of various

sizes up to 12" in diameter. The foreman stated that they were watching the cone

crusher feed belt, which was in full operation, because they were having a

tracking problem. A fall from the elevated cone crusher to the rock covered

ground below could result in fatal injuries. The foreman, Michael Medcraft,

engaged in aggravated conduct constituting more than ordinary negligence in that

36 FMSHRC Page 2338
he was standing on the elevated cone crusher adjusting ring without fall

protection and that he allowed another miner to perform the same task without fall

protection. This violation is an unwarrantable failure to comply with a mandatory

standard. 

Ex. P-1. The citation was terminated after Medcraft and Holmes climbed down from the cone

crusher. 

1. Fact of Violation

In order to establish a violation of one of his mandatory safety standards, the Secretary

must prove that the violation occurred “by a preponderance of the credible evidence.” Keystone

Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas

Co., 11 FMSHRC 2148, 2152) (Nov. 1989)). 

The Secretary argues that if a miner were to fall from the crusher, the distance to the

ground is 12 to 14 feet, unbroken by any platforms or handrails. Respondent argues that since a

miner falling from the cone crusher would land on a platform two feet below rather than fall to

the ground, the miners were not in danger.

Horn testified that he saw Medcraft and Holmes standing on the adjusting ring

approximately 12 to 14 feet in air, with the crusher operating and vibrating. Tr. I: 79. He

explained that as the crusher vibrates, it spews material and dust and, if the material were to

contact a miner, it could cause the miner to fall to the ground, which was covered with rock and

debris. Tr. I: 79-80. On cross-examination, Horn opined that if a miner were to fall from the

ring, his body would be much longer than the width of the lower platform and, thus, he would

fall clear of the platform to the ground. Tr. I: 114-15. According to Horn, in order to land on the

platform, a miner would have to fall straight down, which is unlikely, given that a fall from the

crusher would be backwards. Tr. I: 114-15. 

Beck testified that if a miner were to fall from the ten-inch-wide adjusting ring, he would

fall just 21 inches to the lower platform that extends 36 inches from the side of the crusher. 

Tr. II: 50, 52-53, 59-60. 

I credit Horn’s testimony that a fall from the crusher was a distance of 12 to 14 feet,

rather than the two feet suggested by Quality. If a miner, standing on the ring’s ten-inch-wide

step, were hit by rocks or debris spit from the crusher, the miner would likely lose balance and

fall backwards, rather than slip down to the lower platform in a controlled fashion. Medcraft

admitted that he was not wearing fall protection on the day of the inspection. Tr. II: 101. 

Therefore, I find that the Secretary has proven a violation of section 56.15005. 

2. Significant and Substantial

In Mathies Coal Company, the Commission set forth four criteria that the Secretary must

establish in order to prove that a violation is “significant and substantial” (“S&S”) under

National Gypsum, 3 FMSHRC 822 (Apr. 1981): 1) the underlying violation of a mandatory

36 FMSHRC Page 2339
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 1, 3-4 (Jan. 1984); see also Buck Creek Coal, Inc. v.

FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99,

103-04 (5th Cir. 1988), aff’d 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). 

Evaluation of the third criterion, the reasonable likelihood of injury, should be made in the

context of “continued normal mining operations.” U.S. Steel Mining Co., 6 FMSHRC 1573,

1574 (July 1984). Moreover, resolution of whether a violation is S&S must be based “on the

particular facts surrounding that violation.” Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1998);

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-12 (Dec. 1987). The Secretary need

not prove a reasonable likelihood that the violation, itself, will cause injury. Musser Eng’g, Inc.,

32 FMSHRC 1257, 1280-81 (Oct. 2010). 

 The fact of violation has been established, and miners exposed to the vibrating crusher

and flying debris were subjected to the hazard of falling 12 to 14 feet to the ground. The focus

of the S&S analysis, then, is the third and fourth Mathies criteria, i.e., whether the hazard was

reasonably likely to result in an injury, and whether the injury would be serious. 

Horn testified that it was reasonably likely that the vibrating crusher spewing rocks, dust,

and other material would cause a miner to lose balance and fall 12 to 14 feet to the ground,

which would likely result in a fatality. Tr. I: 79-85. He opined that none of the guardrails on the

crusher would prevent a fatal fall. Tr. II: 110-11. Likewise, Pickett noted that the crusher was

processing material when Medcraft and Holmes were standing on the adjusting ring. Tr. I: 73. 

On the contrary, Medcraft testified that the cone crusher was not running when he and Holmes

were standing on the adjusting ring, and that the guardrail around the edge of the platform would

save him if he were to fall. Tr. II: 102-110; Ex. P-3; P-51. 

The Commission has held that, to satisfy the third element of the Mathies test, the

Secretary must prove that the hazard contributed to by the violation will be reasonably likely to

cause a serious injury. I credit Horn’s and Pickett’s testimony that the crusher was operating

when Medcraft and Holmes were standing on the adjusting ring. As Horn noted, the guardrails

were adequate to protect miners standing on the platform, but would not have prevented a fall

from the top of the equipment. Tr. II: 76-77. I find that failing to utilize fall protection when

standing on the adjusting ring of the vibrating cone crusher, suspended 12 to 14 feet in air, was

reasonably likely to lead to a fatal fall. Therefore, I conclude that the violation was S&S.

3. Negligence and Unwarrantable Failure

Unwarrantable failure is aggravated conduct constituting more than ordinary negligence. 

Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is

characterized by such conduct as "reckless disregard," "intentional misconduct," "indifference,"

or a "serious lack of reasonable care." Id. at 2001-04; Rochester & Pittsburgh Coal Co., 

13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d at 136. The Commission

has recognized the relevance of several factors in determining whether conduct is "aggravated"

in the context of unwarrantable failure, such as the extensiveness of the violation, the length of

36 FMSHRC Page 2340
time that the violation has existed, the operator's efforts in eliminating the violative condition,

and whether the operator has been put on notice that greater efforts are necessary for compliance. 

 See Consolidation Coal Co., 22 FMSHRC 328, 331 (Mar. 2000); Mullins & Sons Coal Co., 

16 FMSHRC 192, 195 (Feb. 1994). The Commission has also considered whether the violative

condition is obvious or poses a high degree of danger. Windsor Coal Co., 21 FMSHRC 997,

1000 (Sept. 1999) (citing BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992);

Warren Steen Construction, Inc., 14 FMSHRC 1125, 1129 (July 1992); Quinland Coals, Inc., 

10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984)). 

Each case must be examined on its own facts to determine whether an actor's conduct is

aggravated, or whether mitigating circumstances exist. Eagle Energy, Inc., 23 FMSHRC 829,

834 (Aug. 2001) (citing Consol, 22 FMSHRC at 353).

The parties’ arguments on the issue of unwarrantable failure focus on whether Medcraft

was an agent of the operator, whose negligence is imputable to Quality. The Secretary argues

that, regardless of his job title or salary, Medcraft was an agent because he represented to MSHA

that he was in-charge of the mine site, and directed the mine’s workforce. Sec’y Br. at 15-18. 

Quality makes a counter argument that Medcraft was not an agent, but a rank-and-file miner,

whose negligence is not imputable to Quality. Resp’t Br. at 11-15. It also points out that the

violation was very brief, that it did not pose a high degree of danger, and that it had not been

placed on notice that greater efforts at compliance were necessary. Resp’t Br. at 16. 

Horn testified that after Medcraft and Holmes had come down from the crusher, Medcraft

introduced himself and, in response to Horn’s inquiry as to who was in-charge, responded “I

am.” Tr. I: 92. Subsequently, Medcraft accompanied Horn on his inspection, and discussed the

citations with him; Horn did not have any discussions with any other miners on-site.

Tr. I: 92-93. During the inspection, Medcraft directed the other miners to shut down the crusher

in order to retrieve and install a guard for the tail pulley, and he supervised installation of the

guard. Tr. I: 94. Horn stated that “by all natural appearances, he directed what they did.” 

Tr. I: 94. According to Horn, Medcraft never told him that he was not in-charge and did not

object, either on December 29 or January 12, when Horn issued citations and orders to him,

designating him as foreman. Tr. I: 93. He also noted that when he discussed the violations with

Tim Becker, Becker did not object to referencing Medcraft as foreman. Tr. I: 94. Horn opined

that Medcraft, as the person in-charge of the operation, disregarded basic industry safety

standards by standing on the adjusting ring without fall protection, a hard hat or safety glasses,

and that this conduct conveyed to other miners that Quality was indifferent to these basic safety

practices. Tr. I: 91, 99. Horn also discovered a harness stored in a garage on the Rancho Plant

site approximately a quarter-mile away from the crusher. Tr. I: 106. Pickett testified similarly,

that Medcraft was the first miner to make contact with Horn when they arrived at the crusher,

and that he interacted the most with Horn. Tr. I: 130. 

Beck testified that Medcraft was not a foreman, and could not hire, fire, discipline, direct

or supervise employees. Tr: II: 27. According to Beck, all three miners on-site that day, Tyler

Becker, Medcraft and Holmes, held the title of machine loader operator, were hourly employees

paid approximately $15.00 per hour, and had the same duties. Tr. II: 30, 45-46; Exs. R-9, R-11. 

Tim Becker testified to the same effect. Tr. II: 80.

36 FMSHRC Page 2341
Medcraft agreed with his superiors’ characterization of his authority, and stated that Beck

and Tim Becker were always in-charge, even if neither was physically present at the Plant. 

Tr. II: 85-86. According to him, if a question or problem arose, he, Tyler Becker or Holmes,

would call Beck or Tim Becker, who were always available by phone. Tr. II: 85. Medcraft

denied telling Horn that he was in-charge, and stated that he spoke to Horn because he was

acquainted with him from a prior inspection; he added that any of the three miners on-site could

have done so. Tr. II: 86-87. According to Medcraft, he was merely relaying instructions from

Horn to the other employees when he told them to install the guard. Tr. II: 88-89. He also stated

that he was trained to use fall protection whenever a fall looks plausible or likely. Tr. II: 95-96;

Ex. R-9.

Section 3(e) of the Mine Act defines an “agent” as “any person charged with

responsibility for the operation of all or part of a . . . mine or the supervision of the miners in a 

. . . mine.” 30 U.S.C. § 802(e). The Commission has recognized that the negligence of an

operators’s “agent” is imputable to the operator for penalty assessment and unwarrantable failure

purposes. Nelson Quarries, Inc., 31 FMSHRC 318, 328 (Mar. 2009) (citations omitted). In

contrast, the negligence of a rank-and-file miner is not imputable to the operator for those

purposes. Id. In considering whether an employee is an operator’s agent, the Commission has

relied upon the miner’s function and whether it was crucial to the mine’s operation and involved

a level of responsibility normally delegated to management personnel, rather than the miner’s

job title or qualifications. Id. The Commission considers factors such as the ability to direct the

workforce, whether the employee holds himself out as a person with supervisory responsibilities

and is so regarded by other miners, and whether the actions of the employee in directing the

workforce have an impact on health and safety at the mine. Id. 

In Nelson, the Commission affirmed the judge’s finding that the employees acted as

agents, with negligence imputable to the operator when, after the inspectors requested to speak to

the miners in-charge, they held themselves out as representatives of the operator and

accompanied the inspectors on inspection; also, they directed the workforce, assigning tasks to

other miners. Id. at 329. The Commission also agreed with the judge’s conclusion that the fact

that ultimate decision-making authority rested with higher-level personnel did not negate the fact

that the subject employees were given responsibilities normally delegated to managers. Id. at

331.

I credit Horn’s testimony that Medcraft identified himself as in-charge of the mine site

and, his behavior, accompanying Horn on his inspection and directing the miners to shut down

the crusher and install the guard, demonstrated the type of managerial control that the

Commission has found indicative of agency. Despite Medcraft’s testimony that either Beck or

Tim Becker was in-charge, although off-site, Medcraft neither immediately called his superiors

when MSHA arrived on-site nor objected when Horn served him, as foreman, with citations and

orders. Similarly, Tim Becker, when reviewing the violations, did not object to Medcraft having

been served as foreman, which is also noted numerous times in the “Condition or Practice”

section of the citations and orders. Therefore, I find that Medcraft was acting as an agent of

Quality, and that his negligence is imputable to the operator. 

36 FMSHRC Page 2342
5

 30 C.F.R. § 56.15002 provides that: “All persons shall wear suitable hard hats when in

or around a mine or plant where falling objects may create a hazard.” 

Moreover, I find no factors mitigating against a finding of unwarrantable failure. 

Medcraft’s decision to disregard safety training and work on the operating crusher without a

harness demonstrated indifference to the danger posed by a potential 12 to 14 foot fall. Given

the vibrating crusher’s suspension, that rocks and debris were flying, and that the miners were

standing on ten-inch-wide steps, the need for fall protection was obvious. Therefore, I find that

the Secretary has met his burden of establishing that Quality displayed a reckless disregard of the

standard, and aggravated conduct that constitutes unwarrantable failure.

C. Order No. 7999980

Inspector Horn issued 104(d)(1) Order No. 7999980, alleging a “significant and

substantial” violation of section 56.15002 that was “reasonably likely” to cause an injury that

could reasonably be expected to be “permanently disabling,” and was caused by Quality’s

“reckless disregard” and “unwarrantable failure” to comply with the standard.5

 

The “Condition or Practice” is described as follows:

The mine foreman was not wearing a hard hat while working up on the cone

crusher. The cone crusher was in full operation along with the crusher feed belt

and a Caterpillar 908G front-end loader was dumping material into the plant feed

hopper approximately 15 feet away from where the foreman was standing. The

foreman was working with two other miners at the time of this violation. Material

being processed by the operational cone crusher plant could bounce/fly up and hit

the foreman causing serious injuries and/or causing the foreman to fall from the

cone crusher plant. Foreman Medcraft engaged in aggravated conduct

constituting more than ordinary negligence in that he was not wearing basic safety

gear, a hard hat, while working on the operating cone crusher in the presence of

two other miners. This violation is an unwarrantable failure to comply with a

mandatory safety standard.

Ex. P-4. The citation was terminated after Medcraft donned his hard hat as he climbed down

from the crusher. 

1. Fact of Violation and Significant and Substantial

Quality has conceded the violation and the S&S designation, but contests the negligence

and unwarrantable failure allegations. Resp’t Br. at 17.

2. Negligence and Unwarrantable Failure

Horn testified that a hard hat was required when working on top of the operating crusher,

because rocks and debris are frequently ejected, which could strike a miner in the head. 

36 FMSHRC Page 2343
6

 30 C.F.R. § 56.15004 provides that: “All persons shall wear safety glasses, goggles, or

face shields or other suitable protective devices when in or around an area of a mine or plant

where a hazard exists which could cause injury to unprotected eyes.” 

Tr. I: 131-32. This was especially necessary for Medcraft, according to Horn, since he was

standing immediately adjacent to the area where rocks and debris were being ejected. Tr. I: 132. 

A miner hit in the head with a projectile rock could suffer a concussion. Tr. I: 132. Horn opined

that Medcraft’s decision to ignore his personal protective equipment training showed complete

disregard for the safety standard and his own safety, and set an example for other miners to act

similarly, in a cavalier manner. Tr. I: 134-36. Medcraft admitted that he was provided with a

hard hat that he was not wearing, and acknowledged that Quality has a policy requiring its use. 

Tr. II: 96-97, 101. 

Medcraft had been trained to wear a hard hat when necessary, and had taken the hat with

him onto the crusher. Ex. P-4; Tr. I: 135-36. Simply put, he chose not to wear it. Given the

constant spew of rocks and debris, the conditions on the crusher posed a high degree of danger. 

I credit Horn’s testimony that failure to follow this basic safety requirement set an example of

non-compliance for other miners, thereby undermining the training that Quality provided. 

Therefore, having determined Medcraft to have been acting as Quality’s agent, I find that the

Secretary has met his burden of establishing that Quality displayed a reckless disregard of the

standard, and aggravated conduct that constitutes unwarrantable failure. 

D. Order No. 7999981

Inspector Horn issued 104(d)(1) Order No. 7999981, alleging a “significant and

substantial” violation of section 56.15004 that was “reasonably likely” to cause an injury that

could reasonably be expected to be “permanently disabling,” and was caused by Quality’s

“reckless disregard” and “unwarrantable failure” to comply with the standard.6

 The “Condition

or Practice” is described as follows:

The mine foreman was not wearing safety glasses while working up on the cone

crusher. The cone crusher was in full operation along with the crusher feed belt

and a Caterpillar 908G front-end loader was dumping material into the plant feed

hopper approximately 15 feet away from where the foreman was standing. The

foreman was working with two other miners at the time of this violation. Material

being processed by the operational cone crusher plant could bounce/fly up and hit

the foreman in the eye causing serious injuries. Foreman Medcraft engaged in

aggravated conduct constituting more than ordinary negligence in that he was not

wearing basic safety gear, safety glasses, while working on the operating cone

crusher in the presence of two other miners. This violation is an unwarrantable

failure to comply with a mandatory safety standard.

Ex. P-6. The citation was terminated after Medcraft put on his safety glasses.

36 FMSHRC Page 2344
7

 30 C.F.R. § 56.14107(a) provides that: “Moving machine parts shall be guarded to

protect persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys,

flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury.” 

1. Fact of Violation and Significant and Substantial

Quality has conceded the violation and the S&S designation, but contests the negligence

and unwarrantable failure allegations. Resp’t Br. at 17.

2. Negligence and Unwarrantable Failure

Horn testified that Medcraft was not wearing safety glasses when he was standing on the

adjusting ring but, unlike his hard hat, Medcraft did not have his safety glasses with him on the

crusher and had to obtain them from another location. Tr. I: 137-38. Given the crusher’s 

constant spitting of rocks and other flying debris, the likelihood of a miner sustaining

permanently disabling injuries as a result of being struck in the eyes was high. Tr. I: 137-38. 

Again, Horn opined that Medcraft had been trained to wear safety glasses, but that his blatant

disregard of this basic safety standard set a negative example for other miners. Tr. I: 138-140. 

Medcraft acknowledged that he was not wearing his Quality-provided safety glasses

while on the crusher. Tr. II: 96-97, 101. I find that Medcraft was acting as Quality’s agent, that

his willful failure to wear protective eyewear while situated on the operating crusher

demonstrated a reckless disregard for the standard, and that the Secretary has met his burden of

establishing that the violation was the result of Quality’s unwarrantable failure.

E. Order No. 7999982

Inspector Horn issued 104(d)(1) Order No. 7999982, alleging a “significant and

substantial” violation of section 56.14107(a) that was “reasonably likely” to cause an injury that

could reasonably be expected to be “fatal,” and was caused by Quality’s “high” negligence and

“unwarrantable failure” to comply with the standard.7

 The “Condition or Practice” is described

as follows:

The tail pulley for the cone crusher feed belt was not guarded. The belt was

mounted approximately 5 feet above the ground and was easily accessible. The

mine foreman stated that the guard had been damaged and removed while a new

guard was being fabricated. The plant has operated without the tail pulley guard

for two days. Contact with the unguarded tail pulley could result in entanglement

causing serious life-threatening injuries. Foreman Medcraft engaged in

aggravated conduct constituting more than ordinary negligence in that he

continued to operate the crusher plant without the tail pulley guard. This

violation is an unwarrantable failure to comply with a mandatory standard. 

Ex. P-8. The citation was terminated after a guard was installed on the tail pulley.

36 FMSHRC Page 2345
8

 30 C.F.R. § 56.14107(b) provides that: “Guards shall not be required where the

exposed moving parts are at least seven feet away from walking or working surfaces.” 

1. Fact of Violation

The Secretary argues that the crusher was being operated with an unguarded tail pulley at

a height of 5 1⁄2 feet above ground, in violation of the standard. Sec’y Br. at 24-26. Quality

argues that the standard does not require that the tail pulley be guarded because, when the

crusher is operating, the tail pulley is seven feet above ground.8

Horn estimated the unguarded tail pulley to be situated 5 1⁄2 feet above ground, and

asserted that the height remained constant, i.e., that Quality never lowered the tail pulley to

install the guard during the December 29 inspection. Tr: I: 141-42, II: 114-18; Ex. P-10B. In

rebuttal to Quality’s assertion that the crusher can only operate with both legs fully extended,

Horn opined that crusher legs are usually adjusted to different heights in order to balance the

machines on uneven ground. Tr. II: 116-17. 

Beck testified that the crusher operates in either transport or operational mode. Tr. II: 33. 

To change from transport to operational mode, the hydraulic legs are extended, raising the height

of the crusher. Tr. II: 34. He opined that when Quality was installing the guard, the legs were

not extended and the crusher was not in operational mode. Tr. II: 34-35; Ex. P-10B. When the

crusher is in operational mode, the tail pulley is seven feet seven inches above ground, which is,

according to him, the only functional height. Tr. II: 36-37; Ex. R-13. Medcraft agreed with

Beck, opining that the crusher cannot operate without its legs fully extended. Tr. II: 93-94. He

also testified that after Horn informed them of the guarding violation, the miners retracted the

legs and lowered the tail pulley so that they could install the guard. Tr. II: 91-92; Ex. P-10B. 

I fully credit Horn’s testimony that the crusher remained at the same height throughout

his inspection. Quality provided no technical data to support its assertion that the crusher can

only operate with both legs fully extended and the tail pulley at a height of seven feet seven

inches. If, as Horn asserted, the crusher was not operating on level ground, a design requiring

both legs extended to the same maximum height would render the machine unstable. Therefore,

I find that the crusher was operating at a lower height, estimated at 5 1⁄2 feet. In drawing this

conclusion, I have considered Beck’s and Medcraft’s lack of credibility on the jurisdiction and

agency issues. Accordingly, I find that the Secretary has proven that Quality violated section

56.14107(a), by failing to provide a guard for the cone crusher’s tail pulley. 

2. Significant and Substantial

The fact of violation has been established, and miners were subjected to entanglement in

the conveyor belt or the tail pulley, itself. The focus of the S&S analysis in this instance is the

third and fourth Mathies criteria, i.e., whether the hazard was reasonably likely to result in an

injury, and whether the injury would be serious. 

36 FMSHRC Page 2346
Horn testified that a miner would be reasonably likely to have his clothing caught on a

metal clip in the conveyor belt and become trapped or pulled into the pulley, causing fatal

injuries. Tr. I: 144. To support his conclusion, Horn referenced a fatality in which a miner was

killed when he became entangled in a conveyor belt underneath the frame of a screening unit. 

Tr. I: 144-45; Ex. P-50 at 2-5. I find that the hazard of entanglement in the conveyor belt is

reasonably likely to lead to disfigurement and fatal injuries; therefore, the violation was S&S. 

3. Negligence and Unwarrantable Failure

Horn testified that Medcraft told him that the tail pulley had been unguarded for two

days. Tr. I: 146; Ex. P-8. He also stated that when he advised Medcraft that he was shutting

down the crusher, Medcraft changed his story that the guard was damaged and in need of repair,

and quickly produced and installed a guard. Tr. I: 145-46. Horn opined that the violation

constituted an unwarrantable failure, given that the condition was in plain view and fully known

by Medcraft, and had existed for two days. Tr. I: 148-49. 

I find, based on Horn’s credible testimony, that the condition had existed for two days,

and that Quality was fully aware that the guard was not in place. Furthermore, I am persuaded

that Medcraft knew that a replacement guard was readily available but, nevertheless, permitted

operation of the crusher with its tail pulley unguarded until Horn cited the condition. Therefore,

I find no mitigating factors, that Quality’s negligence was high, and that the violation was the

result of Quality’s unwarrantable failure.

F. Order No. 7999993

On January 12, 2009, Inspector Horn returned to the Rancho Plant and issued 104(d)(2)

Order No. 7999993, alleging a “significant and substantial” violation of section 56.14107(a) that

was “reasonably likely” to cause an injury that could reasonably be expected to be “fatal,” and

was caused by Quality’s “reckless disregard” and “unwarrantable failure” to comply with the

standard. The “Condition or Practice” is described as follows:

The tail pulley for the Extec cone crusher unit was not guarded. The missing tail

pulley guard was found laying on the ground, one bench above and approximately

300 yards to the northwest of the current cone crusher position. The unguarded

tail pulley was 6 feet above the ground and easily accessible. Contact with the

unguarded tail pulley could result in entanglement causing life threatening

injuries. This same guard was cited on 12/29/2008, 104(d)(1) Order 7999982. 

The order was abated when the factory OEM tail pulley guard was installed. 

Foreman Medcraft engaged in aggravated conduct constituting more than

ordinary negligence in that he allowed the cone crusher plant to operate without

the tail pulley guard being installed and that this very same tail pulley guard was

cited two weeks ago. This violation is an unwarrantable failure to comply with a

mandatory standard.

Ex. P-19. The order was terminated when a guard was installed. 

36 FMSHRC Page 2347
1. Fact of Violation and Significant and Substantial

Horn testified that during the post-inspection conference with Tim Becker following his

December 29 inspection, he related the details of a fatal accident that he had investigated, in

which a miner working on a crusher with an unguarded tail pulley became entangled in the

pulley and killed. Tr. I: 110-12. He warned Becker that unless Quality took its obligation to

guard the tail pulley seriously, Tyler Becker, his son, could, likewise, be pulled into the crusher

and killed. Tr. I: 111. Nonetheless, when he arrived on-site for the January 12 inspection, he

found the crusher operating in a different location, with its tail pulley, again, unguarded. Tr. I:

154. Horn observed that the guard was laying on the ground in the location where the crusher

had been operating on December 29. Tr. I: 112, 154-55; Ex. P-21A, P-21B. Quality’s argument,

the same as proffered respecting the December 29 guarding violation, is, for the reasons

previously articulated, without merit. Therefore, I find that the Secretary has proven that

Quality, again, violated section 56.14107(a) and, applying the same rationale as discussed

regarding the previous guarding violation, that the violation was S&S. 

2. Negligence and Unwarrantable Failure

Horn’s contemporaneous inspection notes state that the “foreman states he understands

about guards . . . MSHA just showed up at wrong time.” Ex. P-20; Tr. I: 157-58. Horn testified

that, given that the same guard had been cited two weeks earlier, there was no excuse for running

the crusher without it. Tr. I: 159. Given the prior violation and Horn’s subsequent discussion

with Quality’s management about the extreme danger of operating the crusher with an unguarded

tail pulley, I find that Quality’s conduct was willful and in reckless disregard of the safety

standard, and that the violation demonstrated a serious lack of reasonable care that constitutes an

unwarrantable failure. 

IV. Penalties

While the Secretary has proposed a total civil penalty of $47,700.00 for the violations,

the judge must independently determine the appropriate assessment by proper consideration of

the six penalty criteria set forth in section 110(i) of the Act. 30 U.S.C. § 820(i). Sellersburg Co.,

5 FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984). 

Applying the penalty criteria, I find that Quality is a small operator with an overall

history of violations that is not an aggravating factor in assessing appropriate penalties. I also

find that Quality demonstrated good faith in achieving rapid compliance after notice of the

violations. Stip. 5. 

Quality argues for reduction in penalties based on its its ability to continue in business. 

In support of this argument, Quality has submitted federal tax returns from 2007 to 2010 for

David Beck, sole proprietor of Quality Materials; for CDG Materials, Incorporated; and for SBB

Enterprises, Incorporated, another corporation owned by Beck. Resp’t Br., Ex. A. Quality also

36 FMSHRC Page 2348
9

 Quality’s Post-hearing Brief cites to “Financial Exhibit B” as evidence of this filing,

but no such documentation was filed. 

claims that CDG filed for bankruptcy protection in February 2012. Resp’t Br. at 21.9

 Quality

argues that due to personal income losses for Beck from 2008 to 2010, corporate losses for CDG

Materials in 2008 and 2009, and corporate losses for SBB Enterprises from 2007 to 2010, the

proposed civil penalties will affect Beck’s ability to meet his financial obligations which,

considering that Quality is a sole proprietorship, is the proper focus in determining the

appropriate civil penalty. See Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1765 (Aug.

2012); Wayne Steen, 20 FMSHRC 381 (Apr. 1998).

 

The Commission has held that the mine operator has the burden of proving that the

proposed penalty will affect its ability to continue in business. Sellersburg, 5 FMSHRC at 294. 

Despite the Secretary’s requests, Quality failed to produce critical information about Beck’s

financial condition including living expenses, net worth, bank account balances and other assetrelated information. Sec’y Br., Ex. A. The federal tax returns that Quality did produce are

unaudited which, as other judges have found, are insufficient support for an inability-to-pay

defense. Apex Quarry, 33 FMSHRC 3158, 3162-63 (Dec. 2011) (ALJ) (citing Johnco Materials,

Inc., 33 FMSHRC 1431, 1433-34 (Jun. 2011) (ALJ)). Without adequate documentation of

Beck’s financial status, the effect of the proposed penalties on his ability to meet his financial

obligations cannot be determined. Quality did produce sufficient information on CDG

Materials’ financial condition for the Secretary to determine that CDG has a 76 percent

probability of being able to pay the proposed penalties. Sec’y Br., Ex. A at 3-4. Therefore, I

find that the proposed civil penalties will not affect Quality’s ability to continue in business.

The remaining criteria involve consideration of the gravity of the violations and Quality’s

negligence in committing them. These factors have been discussed fully, respecting each

violation. Therefore, considering my findings as to the six penalty criteria, the penalties are set

forth below.

A. Citation No. 7999979

It has been established that this S&S violation of section 56.15005 was reasonably likely

to result in an injury that could reasonably be expected to be fatal, that Quality displayed a

reckless disregard of the standard, that the violation was the result of unwarrantable failure, and

that it was timely abated. Therefore, I find that a penalty of $13,600.00, as proposed by the

Secretary, is appropriate.

B. Order No. 7999980

It has been established that this S&S violation of section 56.15002 was reasonably likely

to result in an injury that could reasonably be expected to result in permanently disabling

injuries, that Quality displayed a reckless disregard of the standard, that the violation was the

result of unwarrantable failure, and that it was timely abated. Therefore, I find that a penalty of

$9,100.00, as proposed by the Secretary, is appropriate.

36 FMSHRC Page 2349
10 Payment should be sent to: Mine Safety and Health Administration, U.S. Department

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

numbers and A.C. numbers.

C. Order No. 7999981

It has been established that this S&S violation of section 56.15004 was reasonably likely

to result in an injury that could reasonably be expected to result in permanently disabling

injuries, that Quality displayed a reckless disregard of the standard, that the violation was the

result of unwarrantable failure, and that it was timely abated. Therefore, I find that a penalty of

$9,100.00, as proposed by the Secretary, is appropriate.

D. Order No. 7999982

It has been established that this S&S violation of section 56.14107(a) was reasonably

likely to result in an injury that could reasonably be expected to be fatal, that Quality was highly

negligent, that the violation was the result of unwarrantable failure, and that it was timely abated. 

Therefore, I find that a penalty of $2,000.00, as proposed by the Secretary, is appropriate.

E. Order No. 7999993

It has been established that this S&S violation of section 56.14107(a) was reasonably

likely to result in an injury that could reasonably be expected to be fatal, that Quality displayed a

reckless disregard of the standard, that the violation was the result of unwarrantable failure, and

that it was timely abated. Therefore, I find that a penalty of $13,600.00, as proposed by the

Secretary, is appropriate.

ORDER

ACCORDINGLY, Citation Nos. 7999979, 7999983, 7999984 and 7999985 and Order

Nos. 7999980, 7999981, 7999982 and 7999993 are AFFIRMED, as issued, and it is

ORDERED that Quality Materials and CDG Materials, Incorporated, PAY a civil penalty of

$47,700.00 within 30 days of the date of this Decision.10 ACCORDINGLY, these cases are

DISMISSED. 

/s/ Jacqueline R. Bulluck

Jacqueline R. Bulluck

Administrative Law Judge

36 FMSHRC Page 2350
Distribution:

Matthew M. Linton, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway,

Suite 800, Denver, CO 80202

Joshua Schultz, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D,

Beltsville, MD 20705

/ss

36 FMSHRC Page 2351
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

August 20, 2014 

REUBEN SHEMWELL, 

 Complainant 

v. 

ARMSTRONG COAL CO., INC., 

 Respondent 

REUBEN SHEMWELL & ANTHONY 

YOUNG, 

 Complainants 

v. 

ARMSTRONG COAL CO., INC., 

 Respondent 

ANTHONY YOUNG, 

 Complainant 

v. 

ARMSTRONG COAL CO., INC., 

 Respondent 

 DISCRIMINATION PROCEEDINGS 

Docket No. KENT 2014-0297-D 

Docket No. KENT 2014-0327-D 

Docket No. KENT 2014-0521-D 

Docket No. KENT 2014-0323-D 

Docket No. KENT 2014-0324-D 

Docket No. KENT 2014-0325-D 

Docket No. KENT 2014-0326-D 

Docket No. KENT 2014-0389-D 

Docket No. KENT 2014-0390-D 

ORDER GRANTING MOTION TO CONSOLIDATE

ORDER DENYING ARMSTRONG’S MOTION FOR JUDGMENT ON THE 

PLEADINGS

Before: Judge McCarthy 

These cases are before me based upon discrimination complaints filed pursuant to section 

105(c) of the Federal Mine Safety and Health Act of 1977 (the Act or Mine Act). 

30 U.S.C. § 815(c). Three motions are currently pending in the above-captioned dockets. On 

June 30, 2014, Respondent filed a Motion for Judgment on the Pleadings for Failure to State a 

Claim Upon Which Relief Can Be Granted in Docket No. KENT 2014-0297. On July 5, 2014, 

Complainant Reuben Shemwell filed a Motion in Opposition. Complainants Shemwell and 

Anthony Young also filed two Motions to Consolidate on July 5, 2014, seeking to consolidate 

36 FMSHRC Page 2352

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:
Docket No. KENT 2014-0323 with Docket No. KENT 2014-0324, and Docket No. KENT 2014-

0325 with Docket No. KENT 2014-0326. 

Given the likelihood that these cases will involve similar or overlapping issues, 

witnesses, and evidence, I find that consolidation of all of the above-captioned cases would 

further the interests of judicial economy and efficiency. Commission Rule 12 states that “[t]he 

Commission and its judges may at any time, upon their own motion or a party’s motion, order 

the consolidation of proceedings that involve similar issues.” 29 C.F.R. § 2700.12. The 

Commission has held that “[a] determination to consolidate lies in the sound discretion of the 

trial judge.” Pennsylvania Electric Company, 12 FMSHRC 1562, 1565 (Aug. 1990). 

Upon consideration of the grounds proffered in the Motions to Consolidate and in the 

interest of judicial economy and efficiency in resolving all the dockets, it is ORDERED that the 

above-captioned dockets be CONSOLIDATED. 

For the reasons set forth below, I DENY the Respondent’s Motion to Dismiss. 

I. Procedural Background 

 Complainant Reuben Shemwell is a welder for Respondent Armstrong Coal Company. 

Shemwell was discharged from his job in September 2011 for allegedly making safety 

complaints and engaging in two safety-related work refusals. On January 23, 2012, Shemwell 

filed his first discrimination complaint with the Mine Safety and Health Administration (MSHA) 

against Armstrong Coal. See Sec’y of Labor ex rel. Shemwell v. Armstrong Coal Co., Inc. & 

Armstrong Fabricators, Inc., 38 FMSHRC 1865 (June 2013) (ALJ). After MSHA investigated 

and declined to prosecute in July 2012, Shemwell filed an action on his own behalf with the 

Commission under 105(c)(3). See Sec’y of Labor ex rel. Shemwell v. Armstrong Coal Co. Inc. & 

Armstrong Fabricators, Inc., 35 FMSHRC 248 (Jan. 2013) (ALJ). 

 

 On August 22, 2013, Armstrong filed suit against Shemwell in Kentucky state court for 

“wrongful use of civil proceedings,” alleging that Shemwell knew that he had not been 

discharged for safety-related conduct when he filed his 105(c)(3) action. Shemwell then filed a 

retaliation complaint with MSHA under 105(c)(2), alleging that the state suit court was an 

unlawful attempt to stifle the filing of safety complaints in contravention of section 105(c) and 

the Mine Act. In January 2013, after further investigaton, the Secretary of Labor filed a 

Complaint of Discrimination on Shemwell’s behalf. See Shemwell, 38 FMSHRC at 1866–67. 

36 FMSHRC Page 2353
 While Shemwell’s 105(c)(3) action was still pending, the Secretary prevailed in the 

retaliation suit before the Commission. Armstrong and Shemwell then entered into a 

confidential settlement agreement for both cases, resulting in Shemwell’s return to work as a 

welder on August 9, 2013. Compl. ¶ 11–12.1

II. Factual Background 

 The instant proceeding arises from events that took place after Shemwell’s return to work 

on August 9, 2013. 

 On August 8, 2013, the day before Shemwell returned to work, Shemwell alleges that 

Matt Dunlap, the welding supervisor, held a meeting with other welders and instructed them to 

keep notes on Shemwell’s statements and actions because Shemwell would be keeping notes on 

them. For example, Dunlap allegedly told the welders to take notes if Shemwell was one minute 

late for work, or if he got on a ladder without using a safety harness. Id. at ¶ 12. In its Answer, 

Armstrong admits that Dunlap informed other welders that Shemwell would be working with 

them, but denies that Dunlap specified when Shemwell would return to work or that Dunlap 

informed the miners that Shemwell would take notes on them and that they should take notes on 

him. Answer ¶ 14. 

 

During the week of August 12, 2013, Shemwell alleges that he asked his foreman, Lee 

Winton, for welding sleeves and a welding jacket, and that he received them a few days later. 

Compl. ¶ 13. Armstrong admits that Shemwell asked for such personal protective equipment. 

Answer ¶ 15. 

 On August 20, 2013, Shemwell allegedly told Dunlap that he wanted the material safety 

data sheets (MSDS) for both stainless steel wire and 58GV wire because he was concerned about 

the health effects of working with the wire. According to Shemwell’s Complaint, Dunlap was 

visibly upset and only gave Shemwell an MSDS for the stainless steel wire. Id. at ¶ 14–15. 

 1

 Before its determination not to proceed on the merits of Shemwell’s original 105(c)(2) 

complaint, MSHA filed an Application for Temporary Reinstatement seeking to reinstate 

Shemwell to his job pending a final order on the complaint. See 30 U.S.C. § 815(c)(2). Upon 

finding that Shemwell’s complaint was not frivolously brought, Administrative Law Judge Jerold 

Feldman ordered Armstrong to temporarily reinstate Shemwell. See Sec’y of Labor ex rel. 

Reuben Shemwell v. Armstrong Coal Co., Inc. & Armstrong Fabricators, Inc., 34 FMSRHC 

1464 (Jan. 2013) (ALJ), aff’d, 34 FMSRHC 1580 (2013). Thereafter, Armstrong and Shemwell 

executed an “Agreement Regarding Economic Reinstatement,” whereby Shemwell was paid full 

wages and benefits, but agreed to stay off Armstrong’s property. Sec’y of Labor ex rel. Reuben 

Shemwell v. Armstrong Coal Co., Inc. & Armstrong Fabricators, Inc., 34 FMSRHC 2009 (Aug. 

2012) (ALJ). After the Secretary’s successful suit on Shemwell’s behalf regarding his 105(c)(2) 

retaliation case, Judge Feldman dissolved the order approving the temporary economic 

reinstatement. Sec’y of Labor ex rel. Reuben Shemwell v. Armstrong Coal Co., Inc. & 

Armstrong Fabricators, Inc., KENT 2012-0655-D (Sept. 2012) (ALJ), unpublished Order dated 

Sept. 12, 2012.

36 FMSHRC Page 2354
Armstrong denies that Dunlap was upset, and asserts that Shemwell only requested the MSDS 

for the stainless steel wire. Answer ¶ 16–17. Shemwell alleges that he received a box of regular 

wire the next day and read the enclosed MSDS. He then called Dunlap. When Dunlap arrived at 

his work site, Shemwell told him about the MSDS requirements for the regular wire. Dunlap 

allegedly dismissed Shemwell’s concerns and stated that welders would “die early anyway” 

because of “all of the shit” they breathe while they weld. Dunlap used his own father-in-law as 

an example of a welder “dying early” from “all the shit that they breathed.” Dunlap said his 

father-in-law had been a welder and had died in his early 50s. Shemwell replied that he just 

wanted to know what he was dealing with when he welded. Compl. ¶ 16–17. Armstrong argues 

that Dunlap’s remarks about dying early because of “all the shit they breathe” were in reference 

to Shemwell’s smoking habit, and that Dunlap offered his father-in-law’s death as an example of 

dying early because his father-in-law had died from smoking. Answer ¶ 18–19. 

 On August 22, 2013, safety director Richard Hicks, safety representative Matt McGehee, 

and Dunlap met Shemwell at his work station. Dunlap allegedly told Shemwell that MSHA 

Inspector Wendell Crick thought that Armstrong was providing all required personal protective 

equipment. Dunlap allegedly also told Shemwell that the “court order” said that Shemwell 

would be welding, and that if Shemwell refused to weld, Armstrong would have nothing for 

Shemwell to do. During the same conversation, Hicks allegedly asked Shemwell whether he had 

chosen welding as a career. When Shemwell replied in the affirmative, Hicks allegedly said, 

“You may want to think about another career.” Compl. ¶ 18–20. Armstrong admits that Hicks 

asked Shemwell whether he had chosen welding as a career, but denies that Hicks made the 

alleged threat that Shemwell ought to think about another career. Answer ¶ 20. 

 

On August 23, 2013, Shemwell filed a section 105(c)(2) Discrimination Complaint with 

MSHA. Compl. ¶ 2. On February 26, 2014, after MSHA declined to prosecute the complaint, 

Shemwell filed the instant action under section 105(c)(3). In essence, Shemwell alleges 

three instances of interference under section 105(c)(1): 1) on August 8, 2013, Dunlap attempted 

to ostracize Shemwell from his fellow welders and build a disciplinary record against him; 2) on 

August 20, 2013, Dunlap allegedly expressed the futility of inquiring about safety data involving 

welding wire because welders would “die early anyway” because of “all the shit they breathe;” 

and 3) on August 22, 2013, Hicks and Dunlap implicitly threatened Shemwell with job loss if he 

continued to pursue safety concerns. Compl. ¶ 21–23. Armstrong denies that its conduct 

violated the Mine Act, denies that Shemwell suffered any adverse action motivated in any part 

by protected activity, and argues that any adverse action that Shemwell did suffer was based 

solely on his unprotected activity. Answer ¶ 27–31. 

 

III. Principles of Law 

A. Standard of Review for Judgment on the Pleadings 

Federal Rule of Procedure 12(c) allows parties to move for a judgment on the pleadings 

“after the pleadings have closed—but early enough that it will not delay trial.” 

Fed. R. Civ. P. 12(c). In practical terms, a “rule 12(c) motion for judgment on the pleadings for 

failure to state a claim upon which relief can be granted is nearly identical to that employed 

under a Rule 12(b)(6) motion to dismiss.” Kottmeyer v. Maas, 463 F.3d 684 (2006) (citations 

omitted). A motion to dismiss under Rule 12(b)(6) challenges the formal sufficiency of the 

36 FMSHRC Page 2355
complaint. The moving party must show there is no legal authority to grant relief, even 

assuming that all the facts alleged in the complaint, and the inferences drawn from them, are 

true. Sec’y of Labor, ex rel. Steven Feagins v. Denver Coal Co., 23 FMSHRC 47, 48 (Jan. 2001) 

(ALJ) (citing Fed. R. Civ. P. 12(b)(6); Haines v. Kerner, 404 U.S. 519 (1972)). Conversely, “the 

plaintiff[] must plead factual content that allows the court to draw the reasonable inference that 

the defendant is liable for the misconduct alleged.” Jackson v. Sedgwick Claims Mgmt. Servs., 

731 F.3d 556, 562 (6th Cir. 2013) (en banc) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 

In evaluating Armstrong’s motion to dismiss, the undersigned “must [therefore] construe 

the complaint in the light most favorable to the [complainant], accept its allegations as true, and 

draw all reasonable inferences in favor of the [complainant].” Jackson, 731 F.3d at 562 (citing 

Directtv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). In the context of discrimination 

cases, courts have recognized that a complainant need not establish a prima facie case in order to 

overcome a motion to dismiss. Therefore, a complaint “need not present detailed factual 

allegations, [but only] allege sufficient factual content from which a court, informed by its 

judicial experience and common sense, could draw the reasonable inference” that the 

complainant was discriminated against. Keys v. Humana, Inc., 684 F.3d 605, 610 (6th Cir. 2012) 

(citing Iqbal, 556 U.S. at 508). 

B. Commission Interference Precedent 

Section 105(c)(1) of the Act provides that 

[n]o person shall discharge or in any manner discriminate against or cause to be 

discharged or cause discrimination against or otherwise interfere with the exercise 

of the statutory rights of any miner . . . because such miner . . . has filed or made a 

complaint under or related to this Act, including a complaint notifying the 

operator or the operator’s agent, or the representative of the miners at the coal or 

other mine of an alleged danger or safety or health violation in a coal or other 

mine, or because such miner . . . has instituted or caused to be instituted any 

proceeding under or related to this Act or has testified or is about to testify in any 

such proceeding, or because of the exercise by such miner . . . on behalf of 

himself or others of any statutory right afforded by this Act. 

29 U.S.C. § 815(c)(1) (emphasis added). The Commission has acknowledged that “Congress 

viewed the free exercise of miners’ rights as essential to the achievement of safe and healthful 

mines.” Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 1478 (1982) (citing Pasula v. Consol. 

Coal Co., 2 FMSHRC 2786 (1980)). Section 105(c) “encourages miner participation in the 

enforcement of the Mine Act by protecting them against not only the common forms of 

discrimination, such as discharge, suspension, demotion . . . but also against the more subtle 

forms of interference, such as promises of benefit or threats of reprisal.” Id. (citing S. Rep. 91-

191, 95th Cong., 1st Sess. 36 (1977) reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong. 2d Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 624 (1978)) (emphasis added). Such practices instill in the minds of 

miners the fear of reprisal or discrimination, and may not only chill the exercise of protected 

rights by miners directly affected, but also cause other miners, who wish to avoid similar 

36 FMSHRC Page 2356
treatment, to refrain from asserting their rights. This collides with the goal of encouraging miner 

participation in enforcement of the Mine Act. Id. at 1778–79. 

The Commission has long-recognized that an operator’s interference with statutory rights 

violates section 105(c)(1). See, e.g., Moses, 4 FMSHRC 1475 (1982). The Moses test, 

reaffirmed in Sec’y of Labor ex rel. Gray v. North Star Mining, Inc., 27 FMSHRC 1 (2005), has 

its genesis in section (8)(a)(1) of the National Labor Relations Act (NLRA), 

29 U.S.C. § 158(a)(1), which makes it unlawful for an employer to “interfere with, restrain, or 

coerce” an employee in the exercise of statutory rights. Gray, 27 FMSHRC at 10. Interference 

may come in many forms, including, but not limited to, surveillance, interrogation, coercion, 

harassment, threats of reprisal, promises of benefit, and statements of futility.2

 Whether 

interference has occurred is generally evaluated by examining the operator’s statements to 

determine whether they have a reasonable tendency to interfere with the free exercise of statutory 

rights, regardless of motive or whether the interference succeeded or failed. Gray, 27 FMSHRC 

at 10 (citing American Freightways Co., 124 NLRB 146, 147 (1957)). Applying this test, the 

Commission has emphasized that “in determining whether a statement is an impermissible 

threat . . . language used by the parties . . . must not be isolated nor analyzed in a vacuum, but 

must be considered in light of the circumstances existing when such language was spoken.” 

Gray, 27 FMSHRC at 7 (citing TRW v. NLRB, 654 F.2d 307, 313 (5th Cir. 1981)). In other 

words, the judge must consider the “totality of circumstances.” See Gray 27 FMSHRC at 9-10; 

Moses, 4 FMSHRC at 1478 n. 8. 

IV. Analysis 

 Dunlap’s August 8, 2014 attempt to ostracize Shemwell from the other welders and to 

“build a record” against him by instructing the other welders to take notes on his workplace 

actions can be construed as creating an impression of surveillance due to Shemwell’s prior 

protected activity. Dunlap’s statement, conveyed to other miners and communicated back to 

Shemwell, could have a reasonable tendency to interfere with the miners’ right to pursue safety 

and health complaints. Dunlap’s instruction to take notes on Shemwell’s actions may be 

construed, in context, as essentially an order to surveil and “bird-dog” him, arguably because of 

his prior protected activity. In fact, in Docket Nos. KENT 2014-0324 and KENT 2014-0325, 

Shemwell and Young allege that Respondent hired a consultant named David Stacer to do just 

that. Although Dunlap’s instructions might have been motivated by a legitimate concern with 

Shemwell’s work performance, Shemwell argues that he has no history of any punctuality 

problems or non-compliance with safety standards. Furthermore, even if motive were relevant, 

Shemwell has a colorable claim of disparate treatment. 

 2 See, e.g., Johnnie’s Poultry Co., 146 NLRB 700, 775 (1964) (coercive interrogations 

violate the NLRA); N.L.R.B. v. Intertherm, Inc., 596 F.2d 267, 274–275 (1979) (surveillance 

and coercive interrogation violate the NLRA); N.L.R.B. v. St. Francis Healthcare Centre, 212 

F.3d 945 (6th Cir. 2000) (coercive statements that union membership is futile violate the NLRA); 

Sec’y of Labor ex rel. Gray v. North Star Mining, Inc., 27 FMSHRC 1, 7 (2005) (threats of 

reprisal violate the Mine Act); Ivy Steel & Wire, Inc., 346 NLRB 404 (2006) (unlawful 

surveillance of union activities violates the NLRA). 

36 FMSHRC Page 2357
 Dunlap’s August 20, 2013 statement to Shemwell that welders “die early anyway” 

because of “all the shit that they breathe” could have a reasonable tendency to interfere with 

Shemwell’s statutory rights because it arguably conveys the impression that it was futile for 

Shemwell to raise safety-related complaints about the welding process. The statement came 

shortly after Shemwell expressed concerns about the stainless steel and 58GV wire and asked for 

the material data safety sheets. From Shemwell’s perspective, the statement could reasonably be 

interpreted to mean that Armstrong was not taking his safety complaints seriously and that 

Shemwell’s future exercise of protected rights would have no effect on reducing potentially 

harmful health and safety hazards for the welders. 

 Similarly, Hicks’ August 22, 2013 statement to Shemwell that he may want to think 

about another career could have a reasonable tendency to interfere with Shemwell’s exercise of 

statutory rights because it could be construed as an indirect threat of discharge for engaging in 

prior protected activity. In fact, Shemwell had recently expressed safety concerns regarding the 

appropriate personal protective equipment and the material safety data sheet for stainless steel 

and 58GV wire. It can be reasonably inferred that the purpose of the subsequent visit to 

Shemwell’s work station by safety director Hicks, safety representative McGehee, and Dunlap 

was to send an implicit message to Shemwell that they did not appreciate his recent continuation 

of protected activity. From Shemwell’s point of view, Dunlap’s statement to the effect that if 

“Shemwell did not want to weld, Armstrong would have nothing for him to do,” could be 

construed as a threat that Armstrong would terminate Shemwell’s employment if he expressed 

any more welding-related safety concerns. 

 

V. Order 

 The facts pled by Shemwell in his complaint are sufficient to support the inference that 

Armstrong interfered with the exercise of statutory rights by miners under section 105(c)(1) of 

the Mine Act. Accordingly, Respondent’s Motion for Judgment on the Pleadings is DENIED. 

 /s/ Thomas P. McCarthy

 Thomas P. McCarthy 

 Administrative Law Judge 

 

36 FMSHRC Page 2358
Distribution: 

 

Tony Oppegard, P.O. Box 22446, Lexington, KY 40522 

Wes Addington, Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY 418858 

Adam K. Spease, Miller Wells, 710 W. Main Street, 4th Floor, Louisville, KY 40202 

Mason L. Miller, Miller Wells, 300 E. Main Street, Suite #360, Lexington, KY 40507 

Marco Rajkovich, Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre 

Circle, Suite 375, Lexington, KY 40513 

Dan Zaluski, Armstrong Coal Company, Inc., 407 Brown Road, Madisonville, KY 42431 

/ccc 

36 FMSHRC Page 2359
1

 Contestant filed a Notice of Contest on August 6, 2014 (hereinafter referenced as

“Contest Notice”), and a Motion for Expedition of Proceedings also dated August 6, 2014

(“Contestant Mot.”). The Secretary made only one filing on August 15, 2014, a Response in

Opposition to Expedited Hearing (“Sec’y Resp.”). 

2 Counsel for White Oak subsequently filed a Reply to the Secretary’s Response in

Opposition. Commission Procedural Rule 10, 29 C.F.R. § 2700.10, which governs the filing of

motions before Commission Judges, allows for a statement in opposition to a written motion;

however, it does not provide for a reply. White Oak did not seek leave from the Court to file its

reply, and I see no reason to grant it sua sponte. Nevertheless, I note that the additional

information in White Oak’s Reply would not affect my decision. 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

August 21, 2014

WHITE OAK RESOURCES, LLC,

 Contestant, 

v.

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner

CONTEST PROCEEDINGS

Docket No. LAKE 2014-650-R

Order No. 8450348; 07/24/2014

Docket No. LAKE 2014-651-R

Order No. 8450350; 07/24/2014

White Oak Mine No. 1

Mine ID 11-03203

ORDER DENYING CONTESTANT’S MOTION FOR EXPEDITED HEARING

AND

ORDER STAYING CONTEST PROCEEDINGS

These proceedings are before me upon the Notice of Contest filed by White Oak

Resources, LLC (“White Oak” or “Contestant”) on August 6, 2014, pursuant to section 105 of

the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815. White Oak

contests the validity of Order Nos. 8450348 and 8450350, issued pursuant to section 104(d)(1)

of the Mine Act.1

 30 U.S.C. § 814(d)(1). On the same day, counsel for White Oak also filed a

Motion for Expedition of Proceedings. (Contestant Mot. at 1.) Chief Administrative Law Judge

Robert J. Lesnick assigned this case to me on August 8, 2014. Counsel for the Secretary filed a

timely Response in Opposition to Contestant’s Motion to Expedite on August 15, 2014. 2 

I. Motion for Expedited Hearing

In its Notice of Contest, White Oak asserted that at the time these orders were issued, the

mine was in compliance with the approved roof control plan in all construction areas, and thus

36 FMSHRC Page 2360

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3 Section 75.220(a)(1) provides that “[e]ach mine operator shall develop and follow a

roof control plan, approved by the District Manager, that is suitable to the prevailing geological

conditions, and the mining system to be used at the mine. Additional measures shall be taken to

protect persons if unusual hazards are encountered.” 30 C.F.R § 75.220(a)(1).

4 Section 75.360(a)(1) provides that “[e]xcept as provided in paragraph (a)(2) of this

section, a certified person designated by the operator must make a preshift examination within

3 hours preceding the beginning of any 8-hour interval during which any person is scheduled to

work or travel underground. No person other than certified examiners may enter or remain in

any underground area unless a preshift examination has been completed for the established

8-hour interval . . . .” 30 C.F.R § 75.360(a)(1).

the orders were “clearly erroneous and must be vacated,” as their issuance was “arbitrary,

capricious and [] not in accordance with law.” (Contest Notice at 2.) White Oak claimed it

similarly “excavated 16 such areas as those cited in the [o]rders, in compliance with the

construction provisions of the approved roof control plan” since June 2013, and that MSHA

inspectors previously found no violations. 

White Oak attached to its Notice of Contest copies of both orders as a single exhibit. 

(Contest Notice, Ex. 1 at 1–6.) Order No. 8450348, dated July 24, 2014, alleges a violation of

30 C.F.R. § 75.220(a)(1), which requires mine operators to develop and follow an approved roof

control plan.3 As noted in the body of the order, MSHA Inspector Glenn Fishback observed that

Contestant’s mining height exceeded seven feet in the 1 North Main return construction entry #1

between crosscuts 21 and 23 and that no rib bolts were present. The order further alleges that

White Oak’s construction violated its approved roof control plan, which requires the operator to

install rib support in areas developed after April 15, 2014, where the mining height exceeds

seven feet. Finally, the order alleges that the violation affected two people, that it was

reasonably likely to cause injury or illness, and that any injury or illness would result in lost

workdays or restricted duty. (Contest Notice, Ex. 1 at 1–4.)

Order No. 8450350, also dated July 24, 2014, alleges a violation of 30 C.F.R. 

§ 75.360(a)(1), which requires mine operators to conduct a preshift examination prior to the start

of any eight-hour work interval.4 Inspector Fishback found no record of a preshift examination

at the 1 North Main “over-cast construction site” prior to a scheduled work shift on July 24. 

(Contest Notice, Ex. 1 at 5.) The order alleges that the violation affected two people, that it was

highly likely to cause injury or illness, and that any injury or illness would have resulted in lost

workdays or restricted duty. (Contest Notice, Ex. 1 at 5–6.)

Now, in a sparse, two-page motion devoid of any citation to law, Contestant requests a

hearing on an expedited basis, seeking a decision on whether the construction procedures being

performed at White Oak Mine No. 1 violate the mine’s approved roof control plan. (Contestant

Mot. at 1.) In support of its motion for an expedited hearing, Contestant parrots its Notice of

Contest and alleges the Secretary’s two orders do not have any basis in fact or law. (Contestant

Mot. at 1.) Contestant again claims it has similarly excavated 16 other areas since June 2013 in

accordance with the mine’s approved roof control plan without incident. (Id.) According to

36 FMSHRC Page 2361
White Oak, Order No. 8450348 calls into question whether Contestant’s ongoing excavation

complies with the mine’s current roof control plan. (Id.) Contestant fears that delaying the

ultimate determination on both orders’ legitimacy would potentially expose White Oak to

numerous similar violations, as well as higher penalties for pattern of violations determinations

and flagrant violations. (Id. at 2.) 

The Secretary responds that Contestant has made no showing that justifies adjudicating

these orders on an expedited basis under Commission Procedural Rule 52, 29 C.F.R. § 2700.52. 

(Sec’y Resp. at 1.) The Secretary maintains that under Commission case law White Oak has

failed to meet its burden and that the orders were issued for “standard violations of a roof control

plan and do not merit special consideration or treatment at an expedited hearing.” (Id. at 1–2.) 

The Secretary emphasizes that the orders in dispute relate to the application of a new roof control

plan put in place in April 2014. (Id. at 1.) Importantly, the Secretary points out that White Oak

does not allege that coal production has been stopped by the issuance of either order. (Id.)

Commission Procedural Rule 52 sets forth the procedures for requesting and scheduling

an expedited proceeding, but it does not address the standards under which such a request is to

be evaluated. 29 C.F.R. § 2700.52. In Wyoming Fuel Company, the Commission held that

consideration of an expedited hearing request remains within the discretion of the Judge. 

Further, the Commission indicated that the Act neither mandates immediate hearings in all

circumstances, nor requires that a party’s motion to expedite proceedings be granted on the

terms sought; rather, a hearing must be held “within a period of time reasonable under the

circumstances of each case.” 14 FMSHRC 1282, 1287 (Aug. 1992). Commission Judges have

held that for an operator to be entitled to such consideration it must show: (1) extraordinary or

unique circumstances (2) resulting in continuing harm or hardship. See Sw. Portland Cement

Co., 16 FMSHRC 2187, 2187 (Oct. 1994) (ALJ). 

Here, Contestant’s argument boils down to a fear that future MSHA enforcement of the

standard, as the inspector applied it in this case, will expose Contestant to a parade of horribles

including a series of heightened penalties. White Oak’s predicament might qualify as a

continuing harm or hardship if it could show MSHA’s current enforcement of the roof control

plan left the mine shuttered or paralyzed. Contestant falls short of this bar. Indeed, the two

orders are not alleged to have affected production in any way, and White Oak abated them by

complying with the approved plan, which led to the orders being terminated on July 31, 2014. 

(Contest Notice, Ex. 1 at 4.) Although White Oak asserts the orders in dispute expose it to

possible flagrant violations or pattern of violations determinations under § 110(b)(2) or § 104(e)

of the Mine Act, Contestant offers no information to substantiate these concerns. (Contestant

Mot. at 2.) Lacking any further details of White Oak’s predicament, I am left to hypothesize at

the scope and magnitude of harm that Contestant could face. No matter how creative, such

hypotheticals are insufficient to carry White Oak’s burden of demonstrating continuing harm. 

Consequently, I determine that any continuing harm or hardship is uncertain and tenuous at best.

White Oak also has not explained why its burden of compliance with the roof control

plan ranks as extraordinary among its industry peers. Merely claiming an extraordinary burden

does not elucidate how such a unique burden would befall Contestant but not its competitors. 

Every day operators face possible citations and orders that might impede continued operations. 

The mere potential for future citations or orders—even those whose enforcement would make

36 FMSHRC Page 2362
future operations uneconomical or impossible—is not unique to Contestant. Cf. Consolidation

Coal Co., 16 FMSHRC 495, 496 (Feb. 1994) (ALJ) (“While I am certain the contestant finds

little comfort in the fact that thousands of [section 104(d)] orders are issued each year, it is

nonetheless not alone in its alleged predicament. Consequently, there are no special

circumstances justifying an expedited hearing.”). White Oak’s circumstances are far from

extraordinary.

White Oak will have its day in court; it simply has not shown the need for an expedited

hearing. Upon my review of the pleadings, I determine that Contestant has not met its burden of

showing extraordinary or unique circumstances resulting in continuing harm or hardship. 

Therefore, Contestant’s Motion for Expedition of Proceedings is hereby DENIED. 

II. Stay of Contest Proceedings

Contest proceedings before Commission Judges are typically stayed until the filing of

their companion penalty proceedings, at which time the contest and penalty cases are

consolidated for hearing and decision. See Marfolk Coal Co., 29 FMSHRC 626 (Aug. 2007). 

This is an efficient procedure, which conserves judicial resources by not necessitating the

holding of two separate hearings in the contest and penalty proceedings. See Commission

Procedural Rules 12 and 55, 29 C.F.R. §§ 2700.12, 2700.55.

Here, I determine it is proper to stay these contest proceedings until the filing of the

companion penalty case for the reasons stated above. Therefore, it is hereby ORDERED that

these contest proceedings are STAYED until the Secretary files a petition for the assessment of

civil penalty and White Oak files an answer. Discovery, if the parties so desire, may take place

during the stay. The parties are further ORDERED to notify my office when they file their

respective pleadings (petition and answer) in the penalty proceeding, so I may then consolidate

the contest and penalty cases for hearing and disposition. 

 /s/ Alan G. Paez

Alan G. Paez

Administrative Law Judge

36 FMSHRC Page 2363
Distribution: (Via Electronic Mail & U.S. Mail)

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton PLLC, 151 N. Eagle Creek Drive, Suite

310, Lexington, KY 40509 

(billys1@jwtslaw.com)

Suzanne F. Dunne, U.S. Department of Labor, Office of the Solicitor, 230 South Dearborn

Street, 8th Floor, Chicago, IL 60604

(Dunne.Suzanne@dol.gov)

/lct

36 FMSHRC Page 2364
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th St. Suite 443 

Denver, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

August 22, 2014 

ORDER DENYING THE COMPLAINANT’S MOTION FOR RECONSIDERATION

This motion is before me under section 105(c) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 815(c). On July 16, 2014, I granted the Complainant’s Application for 

Temporary Reinstatement but denied the Secretary’s request to order economic reinstatement 

without the agreement of the Respondent. Sec’y of Labor o/b/o Cheryl Garcia v. Veris Gold,

Inc., 2014 WL 3725868, *11-12 (July 2014)(ALJ) (“July 16 Order”). On August 4, 2014, the 

Secretary subsequently filed a Discrimination Complaint on behalf of Ms. Garcia with the 

Commission. Cheryl Garcia Discrimination Complaint. On August 15, 2014, the Secretary filed 

a Motion for Reconsideration of the July 16 Order and again sought the temporary economic 

reinstatement of the Complainant over the Respondent’s objections. Sec’y Mot., 1, 8. For the 

reasons that follow, the Secretary’s Motion to Reconsider is DENIED. 

JURISDICTION

Pursuant to the Commission’s procedural regulations, this court retained jurisdiction over 

the temporary reinstatement proceeding after the issuance of the July 16 Order. 29 CFR § 

2700.45(e) 4. However, if a party seeks review of the temporary reinstatement order itself, 

Commission rules direct the party to file a Petition for Review of Temporary Reinstatement 

Order with the Commission within five business days after receipt of the order. 29 CFR § 

2700.45(f). Instructions regarding these specific procedures for review were distributed to 

parties with the July 16 Order. Thirty days after the distribution of the July 16 Order, the 

Secretary submitted a “Motion for Reconsideration of Decision & Order Denying Temporary 

Economic Reinstatement for Cheryl Garcia and Supporting Brief” to this court. The Secretary 

did not specify the procedural basis for the “Motion for Reconsideration” before proceeding to 

the merits of the Complainant’s argument. Sec’y Mot., 1. Given the date and title of the 

Secretary’s Motion, I find that the “Motion for Reconsideration” would ordinarily be improperly 

filed and time barred by 29 CFR § 2700.45(f). 

SECRETARY OF LABOR, (MSHA), 

 on behalf of Cheryl Garcia, 

 Complainant, 

 v. 

VERIS GOLD U.S.A., INC., 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. WEST 2014-789-DM 

MSHA Case No.: WE MD 14-16 

Jerritt Canyon Mill Mine 

Mine ID: 26-01621 

36 FMSHRC Page 2365

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 However, the Secretary does allege that changes in Respondent’s management personnel 

after the July 16 Order should move this court to order economic reinstatement on the basis of 

potential increased hostility at the mine. Sec’y Mot., 6. As such, I have evaluated the 

Secretary’s argument as a Motion for Modification of the July 16 Temporary Reinstatement 

Order on the basis of changed circumstances rather than a reconsideration of the findings of the 

July 16 Order. 

THE SECRETARY’S MOTION

 The Secretary states that a Commission ALJ has previously ordered temporary economic 

reinstatement over the objection of a complainant miner when the Court could “reasonably infer” 

that physical reinstatement would result in workplace disruption. Sec’y Mot, 2; Sec’y of Labor 

o/b/o Thurman Wayne Pruitt v. Grand Eagle Mining, Inc., 33 FMSHRC 1738, 1739 (July 28, 

2011) (ALJ Melick). The Secretary argues from this holding that it is similarly appropriate to 

order economic reinstatement over the objections of the Respondent when there is evidence that 

the miner would suffer “intolerable harassment” in returning to work. Sec’y Mot., 3. The 

Secretary argues that courts outside the Commission have “overwhelmingly concluded” that 

situations of evident antagonism in the workplace render physical reinstatement a meaningless 

remedy and require front pay as the most appropriate solution. Sec’y Mot., 3 n.1(citing Lewis v. 

Fed Prison Indus. 953 F.2d 1277(11th Cir. 1992); Prudential Federal Sav. and Loan Ass’n, 763 

F. 2d 1166, 1172-73 (10th Cir. 1985)). 

 The Secretary goes on to detail Ms. Garcia’s allegations of instances of rude and 

harassing statements made by then Assistant Mill Manager Chris Jones to Ms. Garcia. Sec’y 

Mot., 4. The Secretary argues that as the Respondent allegedly failed to adequately respond to 

Ms. Garcia’s complaints regarding Chris Jones, Ms. Garcia was “constructively discharged” and 

forced to resign to avoid continued hostility. Sec’y Mot., 5 (citing Sec’y of Labor o/b/o Lonnie 

Bowling et al, 21 FMSHRC 265, 278 (Mar. 1999). 

 The Secretary additionally states that Chris Jones has recently been promoted to Mill 

Manager at the Jerritt Canyon Mine and that her former supervisor Jim Johnston has left the 

mine. Sec’y Mot., 6. The Secretary submitted affidavits from Ms. Garcia and the Secretary’s 

counsel of record, Ms. Seema Patel, stating that Ms. Garcia suffered increased anxiety and 

fluctuating blood sugar levels when considering the Respondent’s offer of physical reinstatement 

to her previous position. Garcia Aff. 2-3; Patel Aff. 2-3. The Secretary contends that Ms. 

Garcia’s anxiety regarding potential harassment, particularly from the recently promoted Chris 

Jones, prevented her from returning to her previous position on a full time basis. Sec’y Mot., 7. 

The Secretary finally argues that the parties’ inability to agree to a physical reinstatement plan 

and Ms. Garcia’s anxiety regarding the Respondent’s proposed work plan should motivate this 

court to order temporary economic reinstatement over the objections of the Respondent. Id. at 7-

8. 

ANALYSIS

 

 Section 105(c)2 of the Mine Act mandates that the Commission shall, after finding that 

miner’s discrimination complaint is non-frivolous, “order the immediate reinstatement of the 

36 FMSHRC Page 2366
minder pending final order on the complaint.” 30 USC 815 (c)2. The Commission has stated that 

“The temporary reinstatement provisions contemplate that the miner will provide the operator 

labor in return for wages and benefits.” Sec’y of Labor v. North Fork Coal, 33 FMSHRC 

589,592 (Mar. 2011). As such, Commission ordered temporary economic reinstatement is not a 

remedy provided for or anticipated by the Mine Act. 

 

Indeed, as noted within the July 16 Order, a Commission ALJ has previously held that 

“parties have no right to require or impose on each other, nor does the Court have authority to 

impose, economic reinstatement terms that have not been negotiated and agreed to.” Sec’y of 

Labor o/b/o Kenneth Wilder v. Bledsoe Coal, 33 FMSHRC 2031, 2032 (August 2011) (ALJ Gill) 

(citing Sec'y of Labor v. North Fork Coal Corporation, 33 FMSHRC 92). Similarly, it appears 

that the Commission has only ruled on the enforceability of economic reinstatement when all 

parties, including the respondent, have voluntarily agreed to the economic reinstatement and then 

subsequently sought modification or tolling. See Sec’y o/b/o Gatlan v Ken American Res., 21 

FMSHRC 1050, 1051(remanding tolling effect of company -wide layoffs on preliminary 

economic reinstatement agreement to ALJ); Sec’y of Labor v. North Fork Coal, 33 FMSHRC 

590-91(ruling on requested modifications to voluntary temporary economic reinstatement plan). 

However, at the request of the operator, an ALJ has ordered economic reinstatement over 

the objections of the complainant miner and the Secretary. Wayne Pruitt, 33 FMSHRC 1738-39. 

In concluding that returning the miner to work would result in safety risks, Judge Melick noted 

that the miner had conceded at the temporary reinstatement hearing that he had previously 

backed a front end loader into a tail roller and caused $30,000.00 in damages. Id. at 1738. As 

such, although specific evidence regarding workplace disruption had not been presented at the 

temporary reinstatement hearing, the judge was able to conclude from the corroborating 

testimony of both parties that the miner presented a documented safety risk to himself and others. 

Id. In this case, the Respondent has not conceded any of Ms. Garcia’s discrimination allegations 

and has submitted an affidavit stating that Respondent’s management investigated Ms. Garcia’s 

allegations regarding Chris Jones and found them meritless. Ward Declaration, 3. 

Nevertheless, the Secretary states that “Section 105(c) 2 of the Mine Act grants the 

Commission broad authority in discrimination proceedings ‘to take such affirmative action to 

abate the violation as the Commission deems appropriate including, but not limited to, the 

rehiring or reinstatement of the miner to his former position with back pay and interest.” Sec’y 

Mot. 2-3;Wayne Pruitt, 33 FMSHRC 1739; 30 USC 815(c) 2. However, after reviewing the 

entirety of Section 105(c) 2, this court is confident the expansive range of remedies listed above 

applies only to a decision on the merits of a discrimination complaint itself, and is not 

customarily available within the temporary reinstatement proceedings: 

 

... Such investigation shall commence within 15 days of the 

Secretary's receipt of the complaint, and if the Secretary finds that 

such complaint was not frivolously brought, the Commission, on an 

expedited basis upon application of the Secretary, shall order the 

immediate reinstatement of the miner pending final order on the 

complaint. If upon such investigation, the Secretary determines that 

36 FMSHRC Page 2367
the provisions of this subsection have been violated, he shall 

immediately file a complaint with the Commission, with service 

upon the alleged violator and the miner, applicant for employment, 

or representative of miners alleging such discrimination or 

interference and propose an order granting appropriate relief. The 

Commission shall afford an opportunity for a hearing ... and 

thereafter shall issue an order, based upon findings of fact, 

affirming, modifying, or vacating the Secretary's proposed order, or 

directing other appropriate relief. Such order shall become final 30 

days after its issuance. The Commission shall have authority in 

such proceedings to require a person committing a violation of this 

subsection to take such affirmative action to abate the violation as 

the Commission deems appropriate, including, but not limited to, 

the rehiring or reinstatement of the miner to his former position 

with back pay and interest. ... 

30 USC 815 (c) 2 (emphasis added). 

Given the differing scopes of relief provided for within Section 105 (c) 2 , the language 

quoted by the Secretary applies only after the Commission has provided an “opportunity for a 

hearing”, found that a “person commit(ed) a violation of this subsection” and issued an order 

“based upon findings of fact.” 1 30 USC 815(c)2. Indeed, the Commission has held that 

retroactive relief such as backpay and interest listed by the statute as possible remedies after the 

finding of “a violation” are not available at the temporary reinstatement stage. Sec’y of Labor v. 

North Fork Coal, 33 FMSHRC 592 (“The issue of backpay usually does not arise (during 

temporary reinstatement) since the miner is not compensated for the earlier period of time 

between termination and the judge’s order temporarily reinstating him or her”). Thus, as this 

court has not yet made the findings of fact necessary to order the expansive relief possible after a 

hearing on the merits, the “immediate reinstatement of the miner” to her former position remains 

the sole remedy directly provided for by the Mine Act at this stage. 30 USC 815(c)2. 

In Pruitt, Judge Melick justified the decision to order temporary economic reinstatement 

over the miner’s objections by finding that, “providing a miner with economic reinstatement by 

paying full salary and benefits fulfils the policy justifications of the Act by protecting the miners’ 

financial well-being while he awaits trial on the merits.” Wayne Pruitt, 33 FMSHRC 1739. 

However, an order of economic reinstatement without the operator’s consent would deprive the 

Respondent of the labor it generally receives during temporary physical reinstatement. See Sec’y 

of Labor v. North Fork Coal, 33 FMSHRC 592-93 (“The temporary reinstatement provisions 

contemplate that the miner will provide the operator labor in return for wages and benefits”). 

Indeed, the Secretary has not presented, nor has this court identified, a single 

Commission case in which the operator was ordered to provide temporary economic 

reinstatement over its objections. As such, I find this court could only issue such an order when 

 1

 Section 105(c)3 of the Mine Act provides that a complainant miner may proceed on her own 

behalf even after the Secretary has determined that a violation has not occurred and provides for the same 

hearing opportunity and potential remedies as set forth in Section 105(c)2. 30 USC 815 (c)2-3. 

36 FMSHRC Page 2368
presented with a clear showing of extreme circumstances that would render temporary physical 

reinstatement an objectively meaningless remedy. Sec’y Mot., 3.

 Thus far, the Secretary has not presented any independent corroborating evidence of Ms. 

Garcia’s allegations of workplace hostility and personal anxiety. The submitted affidavits of Ms. 

Garcia and her counsel are not supplemented by documentary evidence or third party affidavits.2 

The Respondent submitted multiple affidavits prior to the July 16 Order that rebutted Ms. 

Garcia’s allegations of discrimination and workplace hostility. Ward Declaration, 3; Culver 

Declaration, 3-4. During a conference call concerning this motion, Respondent’s counsel stated 

that they disputed Ms. Garcia’s harassment allegations but reiterated that they were confident 

Ms. Garcia could return to work at the mine in a productive fashion. Commission precedent 

precludes this court from making credibility determinations or detailed findings of fact during 

the temporary reinstatement proceedings. Secy of Labor o/b/o Albu v. Chicopee Coal Co., 21 

FMSHRC 717, 719 (July 1999). Thus, given the underlying dispute of fact regarding the mine’s 

workplace environment, it would be inappropriate at this point to rule that Ms. Garcia is likely to 

face hostility at the Respondent’s mine if she returned to her previous position. In addition to 

findings regarding the occurrence of workplace harassment, this court would be required to 

determine whether or not that alleged hostility was likely to cause the anxiety alleged by Ms. 

Garcia and whether or not that anxiety was significant enough to prevent Ms. Garcia from 

returning to work. It would again be inappropriate to make these sorts of fact and credibility 

dependent determinations on the basis of the Complainant’s self-supporting affidavits. Indeed, 

any attempt to make a detailed finding of fact at this preliminary stage could prejudice either or 

both of the parties’ positions at the merits proceedings. 

The Secretary’s argument that courts outside the Commission have awarded front pay in 

lieu of actual reinstatement ignores the procedural stance of the cited cases. Lewis v. Fed Ped 

Prison Indus. 953 F. 2d at 1280-81 (awarding front pay in constructive discharge case after a 

hearing on the merits that included testimony from corroborating doctor); Prudential Federal 

Sav. And Loan Ass’n, 763 F. 2d at 1172-73 (awarding front pay after a jury trial when respondent 

directed explicit hostility towards the plaintiff during the trial). Only after full hearings on the 

merits did these courts determine that the plaintiffs had successfully met the evidentiary standard 

necessary to demonstrate constructive discharge and award front pay Id. As such, the 

Complainant’s request for an administrative order of economic reinstatement prior to a hearing 

on the merits lacks authoritative support.3

 

 2

 In noting the lack of independent corroboration for Ms. Garcia’s allegations, I am not 

suggesting that independent documentation would be likely to alter my ruling in this matter. Indeed as 

stated above, a fact finding inquiry during the temporary reinstatement proceeding would normally be 

improper. I have noted the lack of independent corroboration only to detail this court’s inability to make 

the findings necessary to impose economic reinstatement upon the Respondent. 

3

 The Lewis court itself indicated that, even after a hearing on the merits, the judicial or 

administrative award of front pay was highly discretionary, “Front pay remains a special remedy, 

warranted only by egregious circumstances. Although we have listed several factors that may prompt our 

resort to this sort of relief, we emphasize that in many cases the remedy of reinstatement will continue to 

suffice despite the presence of any one of these factors....Not every claim, however legitimate, will 

produce circumstances which so clearly mandate the remedy of front pay.” Lewis v. Fed Ped Prison 

Indus. 953 F. 2d 1281. 

36 FMSHRC Page 2369
Finally, the Secretary has not produced evidence that the Respondent acted in bad faith 

regarding the proposed physical reinstatement plan. The Respondent made Ms. Garcia an initial 

offer of full time reinstatement to her previous position as an Industrial Hygienist with full 

benefits on July 22, 2014. Garcia Aff., 2. Ms. Garcia did not accept this offer and requested that 

she be allowed to work part-time weekend shifts on a 4-week trial basis while she continued to 

work at her current job. Id. at 3. The Respondent rejected Ms. Garcia’s counter-offer and 

insisted that she return to work on a full time basis by Aug 4, 2014. Id. at 4. By offering to 

reinstate Ms. Garcia to her previous full-time position with benefits the Respondent clearly 

attempted to comply with this court’s July 16 Order. During a teleconference, Respondent’s 

counsel explained that although the Respondent was willing to reinstate Ms. Garcia to her 

previous position in order to comply with the July 16 Order, it did not have the financial ability 

to create a separate part-time position in order to satisfy Ms. Garcia’s counteroffer. I find the 

Respondent’s explanation of their position reasonable and absent of any apparent malice towards 

Ms. Garcia. Section 105(c) 2 of the Mine Act clearly empowers the Commission to reinstate a 

miner to her previous position after finding that her discrimination complaint is non-frivolous. 

However, this court is unaware of any authority that requires an operator to agree to, or the 

Commission to impose, temporary reinstatement terms that differ significantly from the work 

agreement in place prior to the discrimination claim. 

ORDER

 For the reasons stated above, the Secretary’s Motion to Reconsider is DENIED. The 

parties are directed to conduct good faith negotiations on the standing temporary reinstatement 

order in conjunction with settlement efforts on the associated merits proceedings. The parties 

shall provide a status update on these matters to this court no later than September 24, 2014. 

/s/ David P. Simonton

David P. Simonton 

Administrative Law Judge 

Distribution: (First Class U.S. Mail) 

Seema Patel, U.S. Department of Labor, Office of the Solicitor 

90 Seventh Street, Suite 3-700, San Francisco, CA 94103 

Peter Gould, Squire Patton Boggs (US) LLP 

1801 California Street Suite, 4900 Denver, CO 80202 

36 FMSHRC Page 2370
1

 The outlines of Justice’s case are discernable, but the exact nature of Justice’s asserted

protected activities and the adverse actions he allegedly suffered are not clear to the undersigned. 

In a separate order issued today, Justice is directed to submit a chronological list of his asserted

protected activities and of the adverse actions he suffered as a result of the activities.

 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue, NW, Suite 520N

WASHINGTON, DC 20004

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

August 22, 2014

MARSHALL J. JUSTICE,

 Complainant,

v.

GATEWAY EAGLE COAL CO.,

 Respondent.

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DISCRIMINATION PROCEEDING:

Docket No. WEVA 2014-559 

MSHA Case No. PINE-CD 2014-01

Mine: Farley Eagle Mine

Mine ID: 46-01537

CORRECTED ORDER REQUIRING THE SECRETARY

 TO PRODUCE DOCUMENTS FOR

 In Camera REVIEW

 AND

 CORRECTED ORDER DEFERRING RULING ON

 COMPLAINANT’S MOTION TO 

ENFORCE SUBPOENA

In this proceeding, the Complainant, Marshall Justice (“Justice”), contends that he was

discriminated against by Gateway Eagle Coal Co. (“Gateway”) in violation of section 105(c) of

the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. §815(c) (“Mine Act” or

“Act”). Justice claims that he engaged in numerous instances of protected activity and that

Gateway’s officials responded in hostile ways, ones that would dissuade a reasonable worker

from exercising his or her rights under the Mine Act, including changing his shift to less

desirable hours.1

Justice filed his initial discrimination complaint with the Department of Labor’s Mine

Safety and Health Administration (“MSHA”), and MSHA investigated. When MSHA declined

to proceed before the Commission on Justice’s behalf (30 U.S.C. §815(c)(2)), Justice filed his

own complaint with the Commission under section 105(c)(3). 30 U.S.C. §815(c)(3). Gateway

36 FMSHRC Page 2371
2

 Once assigned, case was scheduled to be heard on July 29, 2014, but at the request of

the parties, the case was continued to September 3, 2014.

3

 A facsimile of the redacted copy is in the official case file. By the undersigned’s count,

it consists of 113 pages, 50 of which are significantly or totally redacted. 

answered. It denied discrimination occurred, and the matter was assigned to the undersigned.2

The parties initiated extensive discovery, and as part of his discovery efforts, Justice subpoenaed

Carolyn James, the Assistant Director of MSHA’s Technical Compliance and Investigation

Office. The subpoena directed Ms. James to appear to testify at the September 3 hearing and

prior to that to be deposed at a place and time, “[t]o be determined for the convenience of the

parties and deponent.” Subpoena, Marshall Justice v. Gateway Eagle Coal Co., WEVA 2014-

559 (July 11, 2014). Ms. James also was directed to bring with her the complete MSHA file of

the Secretary’s investigation of Justice’s initial complaint.

On July 21, the subpoena was served on Ms. James by Justice’s counsel via the U.S.

Postal Service. Id. The Secretary responded to the subpoena by denying the requests. He

explained his position by stating that he was not a party to the case and that the Secretary’s

policy prevented Ms. James from testifying or being deposed and prevented the investigation file

from being turned over without the approval of the Deputy Solicitor of Labor. See Sec’s Op. To

Complainant’s Mot. To Enforce Subpoena, Exh. B. (Letter of Katherine E. Bissell, Deputy

Solicitor for Regional Operations, U.S. Department of Labor, Esq. (August 12, 2014)). The

Secretary noted that Justice earlier had obtained a redacted copy of the investigation file via a

Freedom of Information Act (“FOIA”) request.3 Id. 1. In declining to produce the file, the

Secretary raised numerous objections, including the Privacy Act, 5 U.S.C. § 552(a), the

deliberative process privilege, the attorney work-product privilege, and the informant privilege.

Id. 3-4. The Secretary concluded: “[I]n light of the above circumstances, and in accordance with

DOL’s authority to regulate the provision of records and testimony under 29 C.F.R. § 2.21 et

seq. . . . DOL does not authorize the release of an unredacted copy of the MSHA investigation

file.” Id. 4. 

After receiving the Secretary’s response, Counsel for Justice filed a motion to enforce the

subpoena. Counsel for the Secretary opposes the motion, again stating that the Secretary is

unable to comply due to the decision of the Deputy Solicitor that Ms. James not be deposed or

testify and that the investigative file not be produced. Counsel notes that pursuant to his FOIA

request, counsel for Justice already has in his possession a copy, albeit redacted, of the file. 

Counsel states that the Secretary’s reason for non-compliance is that:

Under DOL regulations at 29 C.F.R. §2.20 - 2.25,

the production of MSHA personnel and documents

in response to third-party subpoenas is prohibited

unless approved by the Deputy Solicitor of Labor.

On August 12, 2014, [the] Deputy Solicitor for

36 FMSHRC Page 2372
4

 Although not involved in the discovery dispute, counsel for Gateway was a party to the

conversation.

Regional Operations . . . responded to the

Complainant’s subpoena, denying such approval.

(Exhibit B.)

WHEREFORE, for the reasons stated above and

as set forth in Exhibit B, the Secretary lacks 

authority to produce the requested . . . witness and

documents and requests this Court to deny 

Complainant’s Motion to Enforce Subpoena and 

to not issue a directive to enforce the subpoena

in federal district court.

Sec. Of Labor’s Opposition to Complainant’s Mot. To Enforce Subpoena 2.

In an attempt to informally resolve the dispute and find a way forward, on August 15, the

undersigned convened a conference telephone call with counsels.4

 In the call, counsel for Justice

stated that he no longer requests that Ms. James be deposed or testify, but his request that the

investigation file be produced remained extant. Counsel for the Secretary responded that without

authorization of the Deputy Assistant Secretary of Labor, the file can not be produced. Counsel

noted, as he had in his response to the motion to enforce the subpoena, that the Deputy Solicitor

forbade its transmittal. Counsel also noted that in her letter denying authority to produce the

investigation file, the Deputy Solicitor invoked several privileges that in her view prohibited

revelation of the file’s contents. 

The undersigned then suggested to counsels that if the proceeding had been one under

section 105(c)(2) of the Act and the Secretary therefore had been a party, the matter most likely

would have been resolved by submitting the disputed document for in camera review by the

judge to weigh the information it contained against the relevance of the information and the

Secretary’s assertions of privilege. The undersigned asked counsels if they would agree to such

a procedure to resolve the present dispute. Counsel for Justice stated he would. Counsel for the

Secretary stated he would not, that given the determination of the Deputy Solicitor, he had no

authority to do so. Moreover, he stated his belief that much of the information was privileged. 

Having failed to informally resolve the matter, the undersigned advised counsels that he

would consider the merits of Justice’s motion to enforce the subpoena. The undersigned further

stated that he would not continue the September 3 hearing because the matter was continued

once before and because however he ruled, the discovery dispute might well take on a protracted

life of its own. Rather, than close the record at the conclusion of the hearing, the undersigned

stated he would likely leave it open until the dispute was finally decided. At that point, the

undersigned, with the assistance of the parties, would determine what further action, if any, was

needed. 

36 FMSHRC Page 2373
5

 The undersigned again observes that this is an approach that has worked well in section

105(c)(2) cases.

6

 In a July 21, 2014 e-mail to Ms James, which counsel states accompanied the

subpoena, counsel explained:

I am especially interested in obtaining copies of

the Memoranda of Interview . . . that were taken

of MSHA Inspectors Steve Hall and Robert

Puckett. These two inspectors were the only

individuals, other than mine management, to

observe certain acts of discrimination that are

central to Mr. Justice’s claims under

Sec. 105(c)(3) of the Mine Act. As you may

surmise, the factual information contained in the

MOIs . . . taken shortly following the date of

the discrimination . . . is unique and [of]

central importance to Mr. Justice’s case.

There is no meaningful substitute for these

MOIs, because even if Inspectors Hall and

(continued...)

RULING

The undersigned concludes that a ruling on Justice’s motion to enforce the subpoena is

premature, and it is deferred. Instead, and within one week of the date of this order, the

undersigned will direct the Secretary to produce the investigative file as it pertains to the

Memoranda of Interview of two MSHA inspectors, Steve Hall and Robert Puckett for the

undersigned’s in camera inspection. In conjunction with production of these parts of the file, the

undersigned will request the Secretary to identify with specificity each privileged portion of the

materials, state the privilege and explain why the privilege is applicable. The undersigned will

determine whether the privilege is applicable and hence whether the identified part is

“redactable” and will order the Secretary to send a redacted or partially redacted copy to counsel

for Justice, or to send counsel a non-redacted copy if no privileges apply. The undersigned is

sympathetic to the interests and concerns of both Justice and the Secretary and believes that this

balanced approach to production as it pertains to what the undersigned perceives to be the

present limited scope of the subpoena, is best suited to protect their interests and meet their

concerns.5

It is important to realize that this is not a situation in which the complainant is asking the

Secretary to produce “everything but the kitchen sink.” The undersigned deems Justice to have

considerably narrowed the scope of what he is seeking. As noted, when discussing the matter

with counsels and the undersigned, counsel for Justice stated that he has dropped his request that

Ms. James be deposed and testify. In addition, counsel pointed out that his primary interest in

the investigative file is to obtain the Memoranda of Interview of Hall and Puckett.6 This

36 FMSHRC Page 2374
6

(...continued)

Puckett were to testify at the hearing in this

matter, their recollections could scarcely be

expected to be as fresh as they were shortly

following this event that occurred nearly a year

ago.

E-mail, Samuel B. Petsonk, Esq. to Carolyn James (July 21, 2014). 

7

 This is not to say anything prevents counsels from resuming discussions to informally

settle the dispute. Indeed, the undersigned encourages them to do so. 

effectual limitation of the subpoena request suggests to the undersigned that had the Secretary

been at all receptive, the dispute might well have been resolved to the satisfaction of Justice with

little inconvenience to the Secretary. However, the Secretary was not receptive. Rather than

explore whether an accommodation could be reached, counsel cited his lack of authority to

produce the documents, effectively closing off discussions.7

The first question before the undersigned is whether the investigative file, as it pertains to

the MOIs of Hall and Puckett is discoverable? Surely, the answer is, “yes.” Under the

Commission’s rules, discoverable material is “any relevant . . . matter that is admissible evidence

or appears likely to lead to the discovery of admissible evidence.” 29 C.F.R. §2700.56(b). The

MOIs of Hall and Puckett, who allegedly were present when Justice engaged in protected

activity and when Gateway management officials allegedly responded to that activity, are

relevant to Justice’s allegations of discrimination and/or are likely to lead to the discovery of

material that is admissible evidence. 

Commission Rule 56(b) excludes privileged matter from discovery. 29 C.,F.R. §

2700.56(b). Therefore, the second question is whether the requested material is protected from

disclosure by one or more privileges? The undersigned cannot answer the question because

rather than submit the materials for in camera review and then identify the privileges to which

specific parts of the materials allegedly apply, the Secretary has chosen to respond with what is,

in effect, a “my way or the highway” approach. Counsel for the Secretary maintains that he has

no authority to produce the requested materials because the Deputy Solicitor has determined they

may not be released. Without consciously trying to put too grand a gloss on it, it must be stated

that the logical conclusion to draw from the Secretary’s position is no more and no less than that

the government is the arbiter of its own actions. This is, to say the least, a concept that is

antithetical to the very spirit of American jurisprudence. It also must be stated that it is

untenable for a Commission judge to accept the position. To do so may leave a section 105(c)(3)

complaint without effective recourse to information and evidence necessary to ensure a fair trial,

and the primary duty of a Commission judge is to provide fairness to the fullest extent possible. 

Moreover, it is not only the Complainant who has a concern; so does the public. In camera

36 FMSHRC Page 2375
8

 As Commission Judge William Moran recently observed, “[T]he trend that began in the

late twentieth century [is] that more, not less, public information from government is the

preferred practice.” Bristol Coal Corp., 36 FMSHRC ___ (Aug. 15, 2014), slip op.1.

9

 The undersigned also notes that in addition to rejecting the Secretary’s arguments

against in camera inspection, Judge Manning persuasively rejected the adequacy of a FOIA

request as a substitute for production under the Mine Act. Hazel Olson v. Triton Coal Co., 25

FMSHRC 649, 655 (Oct. 2003). 

review furthers the public’s interest in preventing the unwarranted retention of information by

the government.8 

The undersigned finds instructive and persuasive the observations of Commission Judge

Richard Manning when confronted with a similar situation. Noting that the Secretary is

“inexorably tied to the events leading up to . . . [the section 105(c)(3)] case” and that the

documents sought were a “portion of the information gathered by the Secretary during [his]

investigation of . . . [the] complaint,” Judge Manning observed, “The secretary is not a stranger

to [the section 105(c)(3)] proceeding and [he] is not disinterested in the outcome of [the] case.”

Hazel Olson v. Triton Coal Company, 25 FMSHRC 649, 654 (Oct. 2003). Judge Manning went

on, “It is clear that Congress intended the Secretary to rigorously enforce section 105(c) of the

Mine Act. . . . It is also clear that the Secretary, like all human institutions is not infallible. 

Although the Secretary has determined that [the operator] did not violate the anti-discrimination

provisions of section 105(c), the Secretary should want to see justice done and should not

deliberately obstruct [the complainant’s] ability to pursue [his] case on [his] own behalf. ” Id. 

Like the complainant in the case before Judge Manning, Justice “believes that the

information [he] has requested is crucial to [his] case.” 25 FMSHRC at 654. Like Judge

Manning, the undersigned concludes that “it is not clear whether [the complainant] will be able

to establish [his] case without the requested information.” Id.9

 And like Judge Manning, the

undersigned concludes in camera review is necessary and proper.

36 FMSHRC Page 2376
ORDER

Within 5 calendar days of the date of this order, the Secretary is ORDERED TO

PRODUCE for the undersigned’s in camera review copies of the complete MOIs of Inspectors

Hall and Puckett and all related documents. The Secretary shall also submit a statement as to

which privileges, if any, apply to the documents and shall specifically identify the parts of the

documents to which the asserted privileges apply. A ruling on Justice’s Motion To Enforce

Subpoena is deferred until after the Secretary responds to this order.

The parties are advised that the hearing in this matter will go forward as previously

scheduled on September 3, 2014 in Madison, West Virginia.

/s/ David F. Barbour

David F. Barbour

Administrative Law Judge

Distribution (1st Class U.S. Mail):

Thomas S. Kleeh, Esq., Steptoe & Johnson, PLLC, Chase Tower, Eighth Floor, P.O. Box 1588,

Charleston, West Virginia 25326-1588

Marshall J. Justice, 255 3rd Street W, Madison, West Virginia 25130

Samuel B. Petsonk, 1031 Quarries Street, Suite 200, Charleston, West Virginia 25301

36 FMSHRC Page 2377
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

August 25, 2014 

 ORDER ON RESPONDENT’S MOTION FOR SUMMARY DECISION

Before: Judge Moran 

On July 2, 2014 Respondent Beelman Truck Co. (“Beelman” or “Respondent”) filed a 

motion for summary decision,1 seeking dismissal of the two citations issued in connection with 

these dockets. For the reasons which follow, Respondent’s Motion is denied as premature. 

Beelman Truck is a transportation company whose drivers haul coal, limestone and other 

bulk commodities. As self-described in its Memorandum in support of its motion, Beelman 

notes that “[o]ne of its clients [ ,] Mississippi Lime Company, (“Mississippi Lime”) [is] “a large 

underground limestone extraction and crushing operation in [Sainte] Genevieve, Missouri.” 

Beelman Memorandum at 1. Beelman admits that its employees “transport coal and other bulk 

commodities to [ ] locations at Mississippi Lime’s mine site [and that Beelman] also pick[s] up 

loads of finished limestone from Mississippi Lime to be delivered to offsite customers.” 

Although Respondent concedes that on occasion its drivers self-load limestone at the mine site, it 

paradoxically asserts that Beelman employees do not otherwise participate in the loading process 

and, describing themselves as “mere third party transporters[,]” it notes that they “do not directly 

partake in the mineral extraction process.” Beelman Memorandum at 2. 

On August 30, 2013, a Beelman truck driver, Mr. Terry Hunt, apparently had a heart

attack and died, in association with the task of delivering coal to the Mississippi Lime mine 

site. It is alleged that Mr. Hunt drove through a berm and crashed into a ditch. To the Court’s 

understanding, it is not definitively known whether the heart attack preceded or followed the 

1

 A bevy of documents, both procedural and substantive, followed the initial motion. All 

submissions were reviewed and considered. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

BEELMAN TRUCK CO., 

 Respondent 

 CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 2014-47-M 

A.C. No. 23-00542-333827 

Docket No. CENT 2014-48-M 

A.C. No. 23-00542-333827 

Mine: Mississippi Lime 

36 FMSHRC Page 2378

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crash. Subsequent to that event, MSHA issued citations to Beelman, alleging violations of 

30 C.F.R. §§50.10(a) and 50.12. The former alleges that Beelman failed to contact MSHA 

without delay and within 15 minutes of an accident at a mine and includes a proposed penalty 

assessment of $5,000 (five thousand dollars), while the latter asserts that Beelman altered the 

accident scene before the MSHA accident investigation was completed, by removing the truck 

involved. That alleged violation has a $100 (one hundred dollars) proposed assessment. 

Respondent contends that it is only a vendor, not an operator, under the Mine Act and also that 

since the truck driver died at a nearby hospital, not at the mine site itself, there was no reportable 

“accident” under 30 C.F.R. §50.2(h)(1) and (4). Beelman Memorandum at 2. 

As will be set forth in more detail, Beelman contends that it is not an operator under the 

Mine Act and that, even if it is so considered to be one, it is not an operator under the 30 C.F.R. 

Part 50 definition of that term.2

Beelman’s Motion for Summary Judgment. 

Beelman’s Motion acknowledges that for summary judgment to be granted, there must be 

no genuine issue of material fact and, if that hurdle is passed, the moving party must then show 

that it is entitled to summary decision as a matter of law. In support of the first obstacle, 

Beelman lists some 20 “facts” 3 it describes as “undisputed material facts” related to: its 

relationship with Mississippi Lime; its activity while on Mississippi Lime’s property; and those 

facts related to Mr. Hunt’s heart attack while he was on Mississippi Lime’s property.4

Addressing its arguments that it is not an “operator” under the Mine Act, nor under Part 

50, Beelman first contends that it was simply a “vendor completing a sale” and as such it does 

not fall within the defintion of an operator under the Act. After noting that under section 802(d) 

of the Mine Act, an operator is defined as “any owner, lessee, or other person who operates, 

controls, or supervises a coal or other mine or any independent contractor performing services or 

construction at such mine,” it looks to Northern Illinois Steel Supply Co., 294 F.3d 844, (7th Cir. 

2002) as support for its contention. Beelman refers to the Northern Illinois Steel case because of 

its factual similarities to this matter and because the Seventh Circuit considered Northern 

Illinois’ activities to be de minimus and as such fell short of constituting services performed at a 

mine. Similarly, Beelman contends that its minimal activities at Mississippi Lime “do not rise to 

the level tha could be construed as ‘services performed at a mine’” because it “strictly offers bulk 

commodity transportation services to and from Mississippi Lime’s [ ] mine site . . . [and 

2

 Beelman also contends that as the truck driver, Mr. Hunt, died at a nearby hospital, not the mine 

and that as the cause of his death, a heart attack, is not an “illness” those are additional reasons to vacate 

the alleged reporting violation. Despite that contention, Beelman adds that the Court need only consider 

its claim that it is not an operator. 

3

 Beelman enumerates some 20 (twenty) “facts” which it identifies as uncontested. The Secretary 

begs to differ on the ground that discovery has not been completed and that, apart from that, some of its 

initial requests for information have not been supplied to it. 

4

 A twenty-first fact simply lists the two citations issued to Beelman. 

36 FMSHRC Page 2379
therefore] does not participate directly in the mineral extraction process.” Beelman 

Memorandum at 8-9. Beelman does acknowledge that “[o]n occasion, Beelman drivers will 

travel to a predetermined pick up location at Mississippi Lime to pick up a load of finished 

limestone product. . . . [but] that Beelman drivers only travel to the designated location once 

requested to by Mississippi Lime [and that] [o]nce at the designated location, Mississippi Lime 

employees generally complete the entire loading process without the assistance of Beelman 

employees. [Thus Beelman argues that] unlike in Northern Illinois Steel Supply Co., Beelman 

drivers do not assist or otherwise facilitate Mississippi Lime employees [but it admits that] [o]n 

rare occasions (only when picking up Code-L and Hydrated Lime), estimated to be less than 

fifteen percent of the time, Beelman employees will utilize a self load out whereby they load 

their trucks by simply pushing a button on the self load out. [However, Beelman dismisses this 

activity, arguing that] “[u]sing the self load out feature . . . is no different than the NIC 

employees in Northern Illinois Steel helping the operator ‘rig’ the steel [and that] [i]f anything, 

merely pushing the self load out button is less of an activity.” Beelman Memorandum at 9. 

Regarding its reliance on the Northern Illinois Steel Supply decision, it is noted that Beelman is 

based out of Illinois and the Mississippi Lime operation in issue is in Missouri. The Seventh 

Circuit includes Illinois, but not Missouri. 

Beelman anticipates a problem with its reliance upon the Northern Illinois Steel Supply

citation, because it recognizes that two other federal circuit courts have rejected the interpretation 

of minimal independent contractor activity advanced by the Seventh Circuit. It attempts to 

distinguish those cases, Otis Elevator Company v. Secretary of Labor, 921 F.2d 1285 (D.C. Cir. 

1990) and Joy Technologies, Inc. v. Secretary of Labor, 99 F.3d 991 (10th Cir. 1996), both of 

which it admits stand for the contention that “any independent contractors, including Beelman, 

are “operators” under the Mine Act.” Beelman Memorandum at 10. However, Beelman notes 

that those decisions were decided before the Northern Illinois Steel Supply decision and then 

suggests that, in any event, those cases suggest that “there may be a point at which an entity’s 

contacts with a mine would be so attenuated as to remove it from the jurisdiction of MSHA,” 

and therefore those Circuits did not reject a de minimis services defense to MSHA jurisdiction. 

Beelman Memorandum at 10. 

Beelman then turns to its alternative contention that, even if it is an operator under the 

Mine Act definition, at section 802(d), it is not an operator under the narrower definition of the 

term, per 30 C.F.R. § 50.2(c)(2). In this regard it notes that under that regulatory provision, 

“Operator means [t]he person, partnership, association, or corporation or subsidiary of a 

corporation operating a metal or nonmetal mine, and owning the right to do so, and includes any 

agent thereof charged with responsibility for the operation of such mine.” Id. at 12. It also 

observes that the decision of another administrative law judge held that, although an independent 

contractor might meet the definition of an operator under the Mine Act, it was not an operator 

under Part 50’s use of that term. Beelman at 12-13, citing Dickenson –Russell Coal Co., VA 

2009-393-R (Jan. 16, 2013) (ALJ Feldman) affd. Dickenson –Russell Coal Co., LLC v. Secretary 

of Labor, 747 F.3d 251 (4th Cir. 2014). 

36 FMSHRC Page 2380
The Court first notes that decisions of other administrative law judges are of no 

precedential effect. Their impact is limited to the persuasive impact of their decisions, if any. 

Beyond that observation, the Court considers the Dickenson –Russell Coal Co. case to be an odd 

source for reliance, because the 4th Circuit affirmed that every operator subject to the reporting 

requirement had the duty to report a qualifying accident. There, it was in fact the independent 

contractor who reported the incident while the operator contended that action relieved it of its 

own duty to report it. The administrative law judge issued a summary decision, holding that the 

operator still had a duty to report. In its decision the 4th Circuit stated “As mandated by these 

regulations, Each operator shall report each accident, occupational injury, or occupational illness 

at the mine. . . . [and that] [a]ccordingly any person or entity qualifying as an ‘operator’ under 

this regulation was required to report within 10 days accidents or injuries occurring at the 

operator's mine by filing an MSHA Form 7000–1. . . . The Part 50 regulations include their own 

definition of the term ‘operator’ that is identical to the statutory definition except that it does not 

expressly include ‘independent contractor’ within the meaning of ‘operator’ [but that despite this 

omission] [t]here may be multiple ‘operators’ engaged simultaneously at a single mine even 

though only one of them owns the mine. [citing] Speed Mining, Inc. v. Fed. Mine Safety & 

Health Review Comm'n, 528 F.3d 310, 315 (4th Cir. 2008).

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” 747 F.3d 251 at 254. 

It is true that the administrative law judge held that Part 50 controlled the definition of an 

operator in the context of the litigation, but as the independent contractor did in fact report the 

injury and the issue was whether Dickenson had to report it as well, the judge, unnecessarily in 

this Court’s view, as it was not a required determination, held that the independent contractor’s 

reporting of the incident was “gratuitous.”6 Id. at *256. Thus, it should be emphasized that 

Dickenson was not about the independent contractor’s obligation to file a report, though the 

judge commented upon it anyway. Thus, the administrative law judge’s comments about the 

independent contractor were purely dicta. 

Continuing with its argument that it is not an operator under the Part 50 definition of that 

term, Beelman notes that it does not own the right to operate the Ste. Genevieve mine site, has 

no corporate relationship to Mississippi Lime and, as it has stated several times in its submission, 

it is “simply an unaffiliated third party who exclusively provides bulk transportation services to 

and from the Ste. Genevieve mine site. Id. at 17. Referring again to the administrative law 

judge’s reasoning in Dickenson –Russell Coal Co., Beelman adds that it was not an agent either, 

5

 The case was different in other respects as well. The independent contractor supplied miners to 

work at Dickenson. The employee, who was injured while employed by the independent contractor, was 

under the control of Dickenson. 

6

 The 4th Circuit noted that Auer deference, which is akin to Chevron deference, is due where an 

agency is interpreting its own regulation and the matter is ambiguous. Auer v. Robbins, 519 U.S. 452, 

461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), instead of Chevron U.S.A., Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), which establishes the deferential 

framework for reviewing agency interpretations of statutes. Where the regulation is ambiguous, the Court 

noted that “the agency's interpretation controls unless that interpretation is ‘plainly erroneous or 

inconsistent with the regulation.’” The Court in Dickerson added its “review of the agency's 

interpretation in this context is therefore ‘highly deferential.’” 747 F.3d 251 at 257. 

36 FMSHRC Page 2381
because it was not “ ‘operating controlling or supervising’ mining activities at the mine when its 

employee was injured.” Id. at 18.7

 

Finally, Beelman contends that even if it is determined to be an “operator” under the 

Mine Act or Part 50 definitions of that term, no “accident” occurred “because the official place 

of death was the emergency department of the Ste. Genevieve County Memorial Hospital, [and 

therefore] not [at] a mine site under MSHA jurisdiction.” It notes that the citation was based on 

“30 C.F.R. § 50.2(h)(1) which provides that a reportable accident occurs whenever there is ‘a 

death of an individual at a mine.’ . . . [and that] [i]t is undisputed that on September 12, 2013, 

Ste. Genevieve County Coroner Leo C. Basler, issued a letter stating that at 10:53 am on August 

30, 2013, Mr. Hunt arrived by ambulance to the ER at Ste. Genevieve County Memorial Hospital 

[and that] . . . Mr. Basler’s letter further explicitly states that “Mr. hunt was pronounced dead 

in the ER at 11:11 AM by Dr. Bruce Harrison” and that the “[o]fficial place of death is ER, 

Ste. Genevieve County Memorial Hospital, Aug. 30, 2013, at 11:11 AM.” Beelman 

Memorandum at 20 (emphasis in original). 

The Secretary’s Answer and Objection to Respondent’s Motion for Summary 

Decision. (“Secretary Opposition”) 

Pursuant to 29 C.F.R. §2700.67(d), the Secretary filed its opposition to Beelman’s 

Motion. The Secretary’s primary response is that there are material facts in dispute and that 

discovery is not complete and that those reasons make the motion for summary judgment 

premature and therefore inappropriate. The Secretary then proceeds to identify a host of items, 

each identified as “undisputed” by Beelman but, for reasons identified in its Opposition, it 

contends are in dispute. Sec’s Opposition at 3-9, listing disputed items “a” through “u.” Most of 

these reasons rest upon discoverable information which the Secretary has not yet come into 

possession. Copies of agreement(s) between Beelman and Mississippi are needed and it is likely 

that depositions will be in order as well. 

Addressing the legal arguments, the Secretary asserts that “Beelman is an Operator under 

Section 3(d) of the Mine Act because it is an independent contractor performing services at a 

mine site and that a heart attack is a reportable injury since it is a serious injury that could 

reasonably lead to death.” Id. at 9. The Secretary goes on to note that “Beelman is a bulk 

commodity transportation company . . .[with] duties [ ] to haul product in and out of Mississippi 

Lime’s mine site. Drivers drive trucks down a common access road. The inspector has observed 

Beelman employees perform duties associated with hauling. . . . These duties include hooking 

up hoses for pneumatic loading and using harnesses to access the top of their bulk tanker trucks 

to open and close the hatches. . . . Beelman has a steady line of trucks at the mine daily. . . . The 

truck traffic is nearly constant. . . . The quarry operator, Mississippi Lime, requires and 

7

 In support, Beelman points out that its “employees never operate, supervise, or take part in the 

mineral extraction process at Mississippi Lime; Beelman employees never repair or maintain equipment 

owned by Mississippi Lime; at no time do Beelman employees operate or use any Mississippi Lime 

equipment or machinery during the delivery and unloading of product; Beelman employees do not assist 

Mississippi Lime in the loading of product; and most importantly, once on Mississippi Lime property, 

Beelman employees, including Mr. Terry Hunt on the day of his heart attack, are/was under the complete 

control and supervision of Mississippi Lime personnel.” Id. at 19. 

36 FMSHRC Page 2382
receives a high volume of coal from Beelman to manufacture its product, dry lime, for sale and 

distribution into the stream of commerce.” Id. 

The Secretary maintains that Beelman certainly fits within the definition of an operator 

under the Mine Act, noting that the definition at section 3(d) includes “any independent 

contractor performing services or construction at such mine[.]” Noting the analytical steps to be 

applied in interpreting the provisions of the Mine Act, beginning with whether the intent is 

unambiguously expressed, then moving to deference to the Secretary’s reasonable interpretation 

if a provision is ambiguous, and finally that, as a remedial statute, it is to be liberally construed, 

the Secretary points out that “[b]ecause Beelman has over one hundred (100) trucks driving on 

the mine site and down common access roads on the mine site daily[,] both its drivers and 

Mississippi Lime’s miners at the mine site are exposed to safety hazards present at the mine site 

and created by Beelman’s activities at the mine site. One of Beelman’s many drivers, decedent 

Mr. Hunt, drove through a berm and crashed into a ditch. This type of safety hazard should be 

anticipated due to the sheer volume of Beelman trucks at the mine site on a daily basis.” 

Opposition at 10-11.8

 

The Secretary contends, citing cases such as “Musser Engineering, Inc. 32 FMSHRC 

1257, 2010 WL 4563000, Otis Elevator Co. v. Secretary of Labor, 921 F.2d 1285, 1290 (D.C. 

Cir. 1990), Joy Technologies, Inc. v. Secretary of Labor, 99 F.3d 991, 999-1000 (10th Cir. 1996), 

Northern Illinois Steel Supply Co. v. Secretary of Labor, 294 F.3d 844, 848-49 (7th Cir. 2002) 

that this activity far exceeds any de minimus characterization, and that Beelman’s activities are 

“integral” to the mine’s activity.9 It also notes that in Bulk Transportation Services, Inc., “[a] 

coal hauling company was found to have a ‘presence’ at the mine that was not de minimis but 

rather was sufficient for MSHA jurisdiction, when “there is a constant flow of truck drivers in 

and out . . .,” and that they generally haul four to five days per week, [and that] Bulk agreed to 

transport approximately 30,000 tons of raw coal and 20,000 tons of clean coal per month, the 

Commission found Bulk, “was an independent contractor-operator...services in hauling coal 

were essential and closely related to the extraction process.” Sec. Opposition at 12. 

The Secretary also references that the Tenth Circuit, speaking to the statutory provision, 

has held that “MSHA's interpretation -- that independent contractor status is to be based not on 

the existence of a service contract or control [over mining-related operations], but on the 

 8

 Without prejudging the issue, the Court would note that the facts in this case appear to be 

remarkably different from those addressed by this Court in “Hanson Aggregates Midwest, KENT 2012-

1283-M (August 5, 2013) (ALJ Moran) (holding that a heart attack was an “illness” and not an “accident” 

and thus not a reportable event under 30 C.F.R. § 50.10(b)),” Beelman’s characterization of the holding, 

as cited in Beelman’s Memorandum at 2-3. The Court would comment that at least at this point in the 

uncompleted development of the facts, whether they are ultimately contested or not, there appears to have 

been an accident preceding the heart attack, a colorable distinction from Hanson. 

9

 The Secretary also identifies another factual dispute in that it asserts “the inspector has observed 

Beelman employees hooking up hoses for pneumatic loading and using harnesses to access the top of 

their bulk tanker trucks to open and close the hatches. (Secretary’s Exhibit 2) Both activities are integral 

parts of the mine’s activity of producing dry lime and then loading it into tanker trucks for distribution 

into the “stream of commerce[.]” Opposition at 11. 

36 FMSHRC Page 2383
performance of significant services at the mine -- is a reasonable construction of the statute 

entitled to deference.” Id. at 12, citing Joy Technologies, 99 F.3d 991 at 998 (10th Cir. 1996).10 

The Court, in noting the Secretary’s contentions, is not deciding these issues now, for the 

same reason that it is denying Beelman’s motion - it is premature to do so at this point.11 

Conclusion.12

On the basis of the preceding discussion, Respondent’s Motion for Summary Judgment is 

DENIED. The legal determinations cannot be reached until the factual issues have been 

resolved. One does not reach that second, legal determination, hurdle to summary judgment 

until the first hurdle, involving the facts, has been successfully surmounted. This decision does 

not foreclose a later examination in the context of a renewed motion for summary judgment, 

although it is possible, if the material facts are not in dispute, that the Court may then be dealing 

with cross-motions on the legal issues. The Secretary should immediately begin its discovery, if 

it has not already done so. The parties are directed to file a status report to the Court within 60 

(sixty) days and to also submit that report to the Court’s email at: wmoran@fmshrc.gov. 

SO ORDERED. 

 

 /s/ William B. Moran

William B. Moran 

Administrative Law Judge 

 10 The Secretary also contends that, even taking Beelman’s de minimus argument, its activities 

exceed such a test and therefor meet such a measure for it to qualify as an independent contractor. 

11 The Secretary briefly speaks to the issue of whether a heart attack is a reportable injury. Sec. 

Opposition at 14-15. The Court has already made some preliminary observations on this issue, but again 

in the context of this Motion, it believes it would be premature to resolve this question. 

12 Subsequent to the motion and opposition, the Respondent filed a Reply, the Secretary filed a 

motion to strike that Reply, the Respondent filed “suggestions” in opposition to the Reply and the 

Secretary then filed a reply in opposition to Respondent’s Reply. Respondent’s Reply refers to Rule 56 

of the Federal Rules of Civil Procedure and it contends that courts are not required to allow parties to 

conduct discovery. The Court, upon reviewing the submissions, as described above, certainly is of the 

view that the Secretary did more than provide “the slightest showing” to defeat the motion for summary 

judgment. The Court is also of the view that, absent some gross failure or delay, not present here, it 

would be inappropriate to curtail the search for the facts, where discovery is incomplete. Further, 

determinations in motions for summary judgment are within the Court’s informed discretion, which 

discretion the Court has exercised here. The Court has addressed the other contentions, essentially reraised in Beelman’s Reply, and concluded that summary judgment is premature at this time. In the 

future, the parties are directed to first seek the Court’s approval before filing replies. 

36 FMSHRC Page 2384
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-928-8689 

August 25, 2014 

ORDER GRANTING SECRETARY’S MOTION FOR SUMMARY DECISION

and ORDER TO PAY

Before: Judge Harner 

On November 15, 2013, the Secretary filed with the undersigned a Motion for Summary 

Decision and Determination of Penalty in PENN 2011-262. This docket includes one citation 

(No. 7021263), which was assessed as Significant and Substantial (“S&S”), moderate 

negligence, and 3 persons affected, with a civil penalty of $1,026.00.1 On December 2, 2013, the 

Respondent filed a Response to Secretary’s Motion for Summary Decision and Determination of 

Penalty. In its response, the Respondent asserted that the Secretary’s Motion should be denied as 

there exists a material dispute of fact, or in the alternative, granted to the Respondent. On 

December 17, 2013, the Secretary filed an Opposition to Cross Motion for Summary Decision. 

For the following reasons, I grant the Secretary’s Motion for Summary Decision. 

1

 This case was assigned to me following Judge Gary Melick’s retirement from the Commission. 

Although this docket was originally designated by the Chief Administrative Law Judge as a Simplified 

Proceeding under 29 C.F.R. Part 2700, Subpart J, Judge Melick issued as order discontinuing Simplified 

Proceedings on August 25, 2011. On October 12, 2012, I issued an Order granting the Secretary’s 

Motion to amend the single citation in the docket from 30 C.F.R. §70.100(a) to 30 C.F.R. §70.101. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

EMERALD COAL RESOURCES LP, 

 Respondent. 

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CIVIL PENALTY PROCEEDING 

Docket No. PENN 2011-262 

A.C. No. 36-05466-248226 

Mine: Emerald Mine No. 1 

36 FMSHRC Page 2385
The Regulation

Section 70.101 Respirable dust standard when quartz is present. 

When the respirable dust in the mine atmosphere of the active workings contains more 

than 5 percent quartz, the operator shall continuously maintain the average concentration of 

respirable dust in the mine atmosphere during each shift to which each miner in the active 

workings is exposed at or below a concentration of respirable dust, expressed in milligrams per 

cubic meter of air as measured with an approved sampling device and in terms of an equivalent 

concentration determined in accordance with§70.206 (Approved sampling devices; equivalent 

concentrations), computed by dividing the percent of quartz into the number 10. 

Example: The respirable dust associated with a mechanized mining unit or a designated 

area in a mine contains quartz in the amount of 20%. Therefore, the average concentration of 

respirable dust in the mine atmosphere associated with that mechanized mining unit or 

designated area shall be continuously maintained at or below 0.5 milligrams of respirable dust 

per cubic meter of air (10/20=0.5 mg/m(super)3). 

Undisputed Facts

Based on documents created by MSHA, depositions, as well as Respondent's 

responses to discovery, the following facts are undisputed. 

1) Respondent is an "operator" as defined in §3(d) of the Act, 30 U.S.C. § 802(d), at the

Mine at which the subject Citation was issued. Exhibit 2.

2) The operations of Respondent at the Mine at which the subject Citation was issued are

subject to the jurisdiction of the Mine Act. Id.

3) This case is subject to the jurisdiction of the Federal Mine Safety and Health Review

Commission, and its assigned Administrative Law Judges, pursuant to Sections 105 and

113 of the Act. Id.

4) The subject Citation was properly issued and served by a duly authorized representative

of the Secretary of Labor upon an agent of Respondent at the date, time and place stated

therein as required by the Mine Act. Id.

5) The mine tonnage, controller tonnage, and violations per inspection days set forth in

Exhibit A are true and accurate for the time period listed. Exhibit 1.

6) On June 24, 2010, MSHA took a respirable dust sample at the Mine on the designated

area return side bolter C-4 section. When analyzed the sample contained 38% quartz.

Exhibit 3.

36 FMSHRC Page 2386
7) Because the MSHA sample contained more than 5% quartz, in accordance with 30

C.F.R. § 70.101, MSHA was required to start the process of placing the Respondent on

a reduced standard. See 30 C.F.R. § 70.101.

8) In accordance with 30 C.F.R. § 70.101 and the Handbook, Chapter 1 Respirable Dust,

Section IV, M: Establishing a Reduced Respirable Dust Standard ("Section M") on July

29, 2010, MSHA notified Emerald of the June 24, 2010, sample results and its right to

submit an optional sample for quartz analysis. Exhibit 4; Exhibit 3.

9) MSHA has followed the procedures laid out in Section M to establish a reduced

standard as mandated by 30 C.F.R. § 70.101 since November 1985. Declaration of

Robert Thaxton, Exhibit 5.

10) On August 10, 2010, Emerald took an optional sample for submission to MSHA in

accordance with the provisions of Section M. The Optional sample contained 5%

quartz. Exhibit 3.

11) As specified in Section M, if the percent of quartz found in the MSHA sample differs

by 2 percent or less from that found in the operator's first optional sample, the two

samples will be averaged to set the new reduced standard. However, if the samples

differ by more than 2 percent, the operator is given the opportunity to take a second

optional sample. The standard is then set based on the average of all three samples, or

if no second optional sample is taken or the sample is voided, then the standard is set

based on the sample with the highest concentration of quartz. Handbook Section

M(2)(b).

12) As the August 10, 2010, sample was more than 2 percent different then MSHA's June

23, 2010, sample, the Respondent was given the opportunity to either have the reduced

standard set based off of the sample with the highest concentration of quartz or take a

second optional sample. Exhibit 3.

13) On August 30, 2010, Emerald took a second optional sample with a cassette number of

51067982 for submission to MSHA. On September 2, 2010, Emerald's August 30,

2010, second optional sample was analyzed by MSHA's lab and was voided as

insufficient weight gain ("IWG"). Exhibit 6.

14) Emerald's August 30, 2010, sample was voided as IWG in accordance with MSHA

policy contained in Section M because the sample had a total weight gain of less than

.450 mg, and did not contain at least .025 mg of quartz. Id.

15) Emerald’s Second Optional Sample had a weight gain of .345 mg and had a quartz

content of .020 mg. Id.

16) When determining whether to use a sample in the standard setting process, MSHA uses

samples that meet the NIOSH Part B Standard (alternatively referred to as the P7

36 FMSHRC Page 2387
standard); samples that do not meet this standard are voided because there is “no 

confidence” in the results of the sample. Thaxton 39:1 - 41:8, Exhibit 8.

17) When a sample complies with the NIOSH Part B Standard, there is a 95% level of

confidence that the result of the analysis is within 25 percent of the true value of the

sample. Id.

18) According to Mr. Thaxton and Mr. Fenlock, samples with a weight gain of less than

.450 mg and containing less than .025 mg of quartz do not meet the NIOSH Part B

standard. The Respondent's Expert, Mr. Hall, also stated that he believed samples

containing .040 or .050 or below of quartz would not meet the NIOSH Part B standard.

Exhibit 8; Hall 144:4 - 144-13, Exhibit 9.

19) Mr. Hall further stated that MSHA has a rational basis for excluding samples, like the

Respondent's second optional sample, that had a weight gain of less than .45 mg and

had less than .025 mg of quartz. Hall 142:13 - 144-17, Exhibit 9.

20) As the second optional sample was voided, in accordance with Section M, the reduced

standard was set using the respirable dust sample with the highest concentration of

quartz present, which in this case was MSHA's original sample. Exhibit 10.

21) On September 10, 2010, Emerald Mine No. 1 was placed on a reduced respirable dust

standard of .3 mg/m3. Exhibit 2.

22) The .3 mg/m3 reduced standard was derived from the June 24, 2010, MSHA sample

that contained 38 % quartz and in accordance with the procedures outlined in Section

M. Exhibit 10.

23) Emerald's October-November 2010 bimonthly sampling of the designated area 9290

return side bolter resulted in a 0.268 mg/m3 concentration, which was compliant with

the applicable 0.3 mg/m3 standard. Exhibit 2.

24) Respondent's December/January 2011 bimonthly sampling of the designated area 9290

return side bolter resulted in a 0.472 mg/m3 concentration, which exceeded the

applicable 0.3 mg/m3 standard in effect. RFA 7, Exhibit 2.

25) All samples in this matter were analyzed using the IR quartz method of analysis. Mr.

Hall agrees that this is an appropriate methodology to analyze quartz in respirable coal

mine dust. Hall 128:20 - 128:22, Exhibit 9.

26) Mr. Hall has stated that "I have no reason to doubt their [the 5 samples making up the

December/January bimonthly sampling] validity represented conditions that existed at

that point in time." Id. at 152:17 - 152:21.

36 FMSHRC Page 2388
27) Mr. Hall stated, during his deposition, that the June 24, 2010, sample that contained

38% quartz was representative of the conditions in the mine at the time it was taken.

Id. at 110:8-110:13, 149:10 -149:13, 151:12-151:15.

28) Respondent did not formally request a reevaluation of the designated area 9290's 0.3

mg/m3 standard any time between being placed on the reduced standard on September

10, 2010, and the issuance of the citation on January 18, 2011. Exhibit 2.

29) Based on the December/January bimonthly sampling results, the Respondent was

issued Citation 7021263. Exhibit 11.

30) Citation 702163 was issued as an S&S, reasonably likely citation, with a reasonable

likelihood of causing a permanently disabling injury and affecting 3 miners. Id.

31) The Respondent has not produced any evidence that the miners were not actually

exposed to respirable dust in the environment.

32) Emerald's payment of the total proposed penalty of $1,026.00 in this matter will not

affect Respondent's ability to continue in business. Exhibit 2.

Summary Decision Standard

The Court may grant summary decision where the “entire record...shows: (1) that there is 

no genuine issue as to any material fact; and (2) that the moving party is entitled to summary 

decision as a matter of law.” 29 C.F.R. § 2700.67(b); see also UMWA, Local 2368 v. Jim 

Walter Res., Inc., 24 FMSHRC 797, 799 (July 2002); Energy West Mining, 17 FMSHRC 1313, 

1316 (Aug. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986), which interpreted 

Fed.R.Civ.P. 56). The Commission has analogized its Rule 67 to Federal Rule of Civil 

Procedure 56, which authorizes summary judgments upon a proper showing of a lack of a 

genuine, triable issue of material fact. Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 

(Jan. 2007). A material fact is “a fact that is significant or essential to the issue or matter at 

hand.” Black's Law Dictionary (9th ed. 2009, fact). “There is a genuine issue of material fact if 

the nonmoving party has produced evidence such that a reasonable factfinder could return a 

verdict in its favor.” Greenberg v. Bellsouth Telecommunications, Inc., 498 F.3d 1258, 1263 

(11th Cir. 2007) (citation omitted). The court must evaluate the evidence “in the light most 

favorable to ... the party opposing the motion.” Hanson Aggregates, 29 FMSHRC at 9. Any 

inferences drawn “from the underlying facts contained in [the] materials [supporting the motion] 

must be viewed in the light most favorable to the party opposing the motion.” Id. Though the 

moving party bears the initial burden of informing the court of the basis for its motion, it is not 

required to negate the nonmoving party’s claims. Celotex, 477 U.S. at 323. “When the moving 

party has carried its burden under Rule 56(c), its opponent must do more than simply show that 

there is some metaphysical doubt as to the material facts .... Where the record taken as a whole 

could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue 

for trial.’ ” Scott v. Harris, 550 U.S. 372, 380 (2007) (citation omitted). 

36 FMSHRC Page 2389
The Respondent argues that Summary decision should not be granted because there are 

material facts in dispute.2

 As examples, it takes issue with the Secretary’s labeling of certain 

sample results that do not meet its standard as it having “no confidence” in the results, and with 

MSHA’s assertion about why it has no confidence in certain results. Resp. Brief, note 2. 

However, these facts are immaterial to the present dispute. Furthermore, the Respondent argues 

that the Secretary’s characterization of its rule as a “non-binding interpretative rule,” could be 

characterized as a dispute of material fact that would preclude summary decision. Id. at 12. This 

issue is at the heart of the Respondent’s arguments, and it is certainly material. However, it is not 

a question of fact, but rather one of law. Having found no material facts in dispute, I find that 

this case is appropriate for summary decision. 

Analysis

1. The procedures contained in Section M of the Handbook

constituted an interpretive rule

The Respondent makes two primary arguments for why summary decision should be 

granted in favor of Emerald. First, it argues that the procedures contained in Section M of the 

Handbook constitute an improperly promulgated legislative rule because there were no advance 

notice and public comment procedures. In the alternative, the Respondent argues that the 

procedures were unreasonable, and MSHA acted arbitrarily and capriciously in adopting a 

reduced dust standard. Each argument will be considered in turn. 

The Administrative Procedures Act (“APA”) requires that agencies must provide advance 

notice and solicit public comments for legislative rules, but not for “interpretative rules, general 

statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. 

§553(b)(3)(A). The distinction between legislative and interpretive rules is often unclear, having

been described by various courts as “enshrouded in considerable smog,” General Motors Corp. 

v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984), “fuzzy,” American Hospital Association

v. Bowen, 834 F.2d 1037, 1046 (D.C. Cir. 1987); and appearing “rather metaphysical.”

American Mining Congress v. MSHA, 995 F.2d 1106, 1110 (D.C. Cir. 1993). Administrative law 

scholar, Robert A. Anthony, has noted that “the subject of nonlegislative rules breeds 

bewilderment and frustration.” Robert A. Anthony, “Interpretive” Rules, “Legislative” Rules 

and “Spurious” Rules: Lifting the Smog, 8 Admin. L.J. Am. U. 1, 6 (1994). However, these 

nonlegislative rules are necessary for an agency to function. “An agency has, of course, the 

power, indeed the inescapable duty, to interpret its own legislative rules...just as it has the power 

and duty to interpret a statute that it enforces. Hoctor v. U.S. Dept. of Agriculture, 82 F.3d 165, 

168 (7th Cir. 1996). 

Legislative rules are those that “impose new duties upon the regulated party”, while 

interpretative rules “seek only to interpret language already in properly issued regulations.” 

Chao v. Rothermel, 327 F.3d 223, 227 (3rd Cir. 2003). “If the agency is not adding or amending 

language to the regulation, the rules are interpretive. Interpretive, or ‘procedural,’ rules do not 

themselves shift the rights or interests of the parties, although they may change the way in which 

2

 Presumably, this is in the alternative to its argument that summary decision should be granted in 

favor of Emerald. 

36 FMSHRC Page 2390
the parties present themselves to the agency.” Id. However, “a rule does not become a 

legislative rule because it effects some unanticipated change; otherwise only superfluous rules 

could qualify as interpretive rules. We do not think that interpretive rules must be so useless.” 

Miller v. California Speedway Corp., 536 F.3d 1020, 1033 (9th Cir. 2008) (citations omitted); see 

also Orengo Caraballo v. Reich, 11 F.3d 186, 195 (D.C. Cir. 1993) (“While we have said that 

interpretive rules “cannot go beyond the text of a statute, Fertilizer Inst. v. EPA, 935 F.2d 1303, 

1308 (D.C.Cir.1991), we do not, of course, mean to imply that an interpretive statement may 

only paraphrase statutory or regulatory language. Indeed, a mere paraphrase would hardly be 

interpretive at all. Accordingly, an interpretive statement may ‘suppl[y] crisper and more detailed 

lines than the authority being interpreted” without losing its exemption from notice and comment 

requirements under § 553.’ ”) 

At issue here is whether Section M of the Handbook is a legislative or interpretive rule. 

The Respondent argues that the rule is legislative because MSHA used the procedures as a basis 

for determining that a violation existed. Further, the Respondent argues that the procedures in 

Section M established an enforceable standard that placed operators at risk for citations and civil 

penalties. 

In American Mining Congress v. MSHA, 995 F.2d 1106 (D.C. Cir. 1993) (hereinafter 

referred to as “AMC”) , the D.C. Circuit reconciled previous judicial analyses by laying out a 

four-part test to determine whether a rule was legislative or interpretive as follows:3

3

 Courts have used several other tests to determine whether a rule is legislative or interpretive. 

For example, the original “legal effects” test asks whether the agency has used the nonlegislative rule to 

create a binding norm such that it limited its discretion in future adjudications when it promulgated the 

rule. Pacific Gas and Electric Co. v. Federal Power Commission, 506 F.2d 33 (D.C. Cir. 1974). The 

“substantial impact” test asked whether the rule had a substantial impact on the regulated parties. See e.g. 

Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2nd Cir. 1972). Administrative law scholar Jacob E. 

Gersen has described the doctrine distinguishing between legislative and interpretive rule as an evolution 

with three distinct strains. 

First, until approximately the late 1970s many courts distinguished legislative from nonlegislative 

rules by asking whether the rule would have a substantial impact on affected parties. The basic 

intuition was that procedural formality should be a prerequisite for rules with big impacts. Over 

time, a general, if not altogether clear, trend has emerged towards various versions of a legally 

binding test, in which a rule is deemed legislative if and only if it is legally binding. Some courts 

emphasize the intent of the agency to make the rule legally binding while others focus on the 

legally binding effect of the rule on regulated parties. Other courts have experimented with 

variants, for example, the “practically binding” test. Because an agency might pursue only 

enforcement actions alleging a violation of the given policy, private parties might rationally treat 

legally nonbinding documents as though they were binding. A third alternative defines the 

difference procedurally, simply defining legislative rules as those that result from notice and 

comment, rather than those that require notice and comment. 

Jacob E. Gersen, Legislative Rules Revisited, 74 U. Chi. L. Rev. 1705, 1712-13 (2007). 

36 FMSHRC Page 2391
(1) whether in the absence of the rule there would not be an adequate legislative basis for 

enforcement action or other agency action to confer benefits or ensure the performance of 

duties, (2) whether the agency has published the rule in the Code of Federal Regulations, 

(3) whether the agency has explicitly invoked its general legislative authority, or (4) 

whether the rule effectively amends a prior legislative rule. If the answer to any of these 

questions is affirmative, we have a legislative, not an interpretive rule. 

Id. at 1112. The court has since modified this test by finding that the second prong was 

unnecessary as it was little more than “a snippet of evidence of agency intent.” Health Ins. Ass'n 

of America, Inc. v. Shalala, 23 F.3d 412, 423 (D.C. Cir. 1994). Applying the AMC test, it is clear 

that Section M was an interpretative rule that is excepted from the APA’s notice and comment 

requirements. 

The first prong of the test requires the court to inquire whether in the absence of the rule 

at issue there would not be an adequate legislative basis for enforcement action to confer benefits 

or ensure performance of duties. Section 70.101 was promulgated in 1980, following notice and 

comment. Part 70 of the regulations requires the mine to have certified persons use certified 

devices in sampling respirable dust in the mine. 30 C.F.R. §70.1 et seq. The regulations require 

an operator to take respirable dust samples at various times and places throughout the mine, and 

to transmit those samples to MSHA. 30 C.F.R. §§ 70.201, 70.207, 70.208, 70.209, 70.210, and 

70.220. When the respirable dust in the mine atmosphere of active workings contains more than 

5% quartz, the operator is required to continuously maintain the average concentration of 

respirable dust in each shift at or below a reduced standard determined by MSHA. 30 C.F.R. 

§ 70.101. The formula for determining the reduced standard is contained in the regulation. It

requires MSHA to divide the percent of quartz into the number 10, and that figure, expressed in 

milligrams per cubic meter, is the reduced standard. Id. As an example, the regulation provides 

that if a mine contained quartz in the amount of 20%, then the reduced standard would be 0.5 

mg/m3

. Id. 

Section M of the Handbook provides procedures for determining if, and by how much, 

the respirable dust levels in a mine exceed 5% quartz. However, just because there are technical 

procedures articulated in the Handbook, this does not necessitate that it be considered a 

legislative rule. Hoctor v. U.S. Dept. of Agriculture, 82 F.3d at 171 (“Especially in scientific and 

other technical areas, where quantitative criteria are common, a rule that translates a general 

norm into a number may be justifiable as interpretation.”) The regulations do not specify the 

precise procedures by which MSHA should determine when the respirable dust samples are to be 

considered in excess of 5% quartz. Therefore, Section M provides an optional procedure that is, 

in most respects, beneficial to the operator. According to the procedures in Section M, if a dust 

sample appears to exceed the 5% allowable limit, the mine operator may submit up to two 

additional option samples, within certain parameters, and have the reduced standard based on an 

average of these samples. If the operator chooses, it may simply ignore Section M and have its 

reduced standard based upon its initial sample that was in excess of 5% quartz. However, if an 

operator wishes to avail itself of Section M’s optional procedures, it can lead to a reduced 

standard that is higher, and therefore easier to meet, than what it would have been had it been 

based solely on the first sample. 

36 FMSHRC Page 2392

 The AMC test will be applied herein because it addressed many of the previous tests in creating its 

four-part analysis:
The regulation provides the maximum allowable dust limits in the mine atmosphere 

(5%); it provides that a reduced maximum allowable dust limit will be imposed on a mine if it 

exceeds the 5% maximum; and it provides the formula for determining the reduced standard 

(10/x%). If Section M did not exist, the regulations would simply seem to require MSHA to 

base the reduced standard on the original samples transmitted by the operator, without allowing 

any subsequent optional sampling. Therefore, § 70.101 provides an adequate legislative basis for 

enforcement action to ensure the performance of duties. As in AMC, the regulations themselves 

contain all the necessary requirements, and “there is no legislative gap” that required the 

Handbook “as a predicate to enforcement action.” 995 F.2d at 1112. 

In the seminal AMC case, the DC Circuit found that MSHA Public Policy Letters (PPLs) 

which stated that certain x-ray results need to be reported under Part 50 were interpretive rules. 

Part 50 required that whenever certain occupational injuries were “diagnosed”, the operator was 

required to report the diagnosis within 10 days. 995 F.2d at 1107. The PPLs stated that certain 

chest x-ray results constituted a diagnosis that the miner had silicosis or pneumoconiosis for the 

purposes of the Part 50 reporting requirements. Id. at 1108. Applying the first prong of the test 

articulated by the court, it found that the Part 50 regulations contained the requirements and the 

PPL merely interpreted one of these requirements. Id. at 1112. 

Similarly in Chao v. Rothermel, the D.C. Circuit held that MSHA’s procedures for bimonthly dust sampling contained in its handbook were not legislative. 327 F.3d 223 (D.C. Cir. 

2003). The court stated: 

The Handbook Guidelines do not alter the existing health standards, and they do not 

place additional burdens on mine operators to comply with those standards. Mine 

operators must comply with the Mine Act standards regardless of how the MSHA 

enforces them, or whether it performs respirable dust inspections. These Guidelines do 

not determine substantive rights, but merely outline a uniform plan for the MSHA 

inspectors around the country to effectively inspect mines. 

Id. at 227. 

Though the second prong in the AMC test is no longer necessary, it is worth noting that 

MSHA has not published Section M in the Code of Federal Regulations. The third and fourth 

prongs similarly point to the rule being interpretive. MSHA has not explicitly invoked its 

general legislative authority, and Section M does not amend any prior legislative rule. 

Therefore, I find that the procedures articulated in Section M are interpretive and do not 

constitute a legislative rule requiring notice and comment. 

2. MSHA did not act unreasonably when it adopted the reduced standard

The Respondent argues that MSHA acted unreasonably when it adopted the reduced 

standard based on one dust sample. The Secretary’s interpretation of when to accept additional 

samples is owed deference and should be upheld if it is reasonable. Energy W. Min. Co. v. 

FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994). This analysis requires the court to defer to the 

Secretary unless his analysis “is clearly erroneous.” Id. Consistent with the purposes of the 

36 FMSHRC Page 2393
Mine Act, interpretations that further the Act’s “safety promoting purposes” are preferred. 

Secretary v. Walker Stone, 156 F.3d 1076, 1082 (10th Cir. 1998). 

As explained supra, Section 70.101 is silent on the issue of what samples the Secretary 

can review when determining whether the active workings contain more than 5% quartz.4

 The 

regulation on its own appears to allow a single sample to be used in determining a reduced 

standard. Section M merely provides optional procedures for arriving at the reduced standard. 

As such, it is a reasonable interpretation of the regulation entitled to deference. 

3. The Violation was Significant and Substantial

Significant & Substantial (“S&S”) is described in Section 104(d)(1) of the Act as a 

violation “of such nature as could significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A violation is 

properly designated S&S “if, based upon the particular facts surrounding that violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature.” Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

As is well recognized, in order to establish the S&S nature of a violation, the Secretary 

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

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

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

that the injury will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 

(Jan. 1984); accord Buck Creek Coal Co., Inc., 52 F. 3rd. 133, 135 (7th Cir. 1995); Austin Power 

Co., Inc. v, Sec'y of Labor, 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). 

The Commission has held that when the Secretary proves overexposure to respirable dust 

has occurred, it can be presumed that the violation is S&S. Consolidation Coal Co., 8 FMSHRC 

890, 899 (June 1986); U.S. Steel Mining Co., Inc., 8 FMSHRC 1274, 1281 (Sept. 1986).5

 This 

presumption is based upon the fact that the exposure levels set in the standards are “the 

maximum level allowed to achieve [Congress’s] stated goal of preventing disabling respiratory 

disease.” Jim Walter Resources, Inc., 17 FMSHRC 1423, 1447 (August 1995) (quoting U.S. 

Steel). This presumption may be rebutted by the operator by establishing that miners were not 

exposed to the hazard posed by the excessive concentration of respirable dust through the use of 

personal protective equipment. Consolidation Coal, 8 FMSHRC at 899. Respondent has 

presented no such evidence here. 

4

 The Respondent’s reliance on Keystone Coal Mining Corp., 16 FMSHRC 6 (Jan. 1994), is 

misplaced, as that case only addressed the issue of whether an MSHA spot inspection, where citations 

were based on a single sample, was valid. In this case, the issue is over the predicate sampling that led to 

the reduced sample, rather than the follow-up sampling that can lead to a citation. 

5

 The Respondent has conceded that Commission precedent establishes that a presumption of 

S&S exists where the Secretary has proven that an overexposure to respirable dust has occurred. See 

Resp. Brief, at note 8. 

36 FMSHRC Page 2394
Moderate negligence is defined as “where the operator knew or should have known of the 

violative condition or practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d). In 

this instance, the Respondent was made aware of the dust issues through the imposition of the 

reduced standard. The Respondent subsequently submitted dust samples in excess of the reduced 

standard, which the Secretary alleges, and I find, to be moderate negligence because Respondent 

was obligated to be under a heightened state of awareness. Respondent has not presented any 

evidence to dispute this finding. 

The Citation states that 3 persons were affected by the condition, and the Respondent has 

not presented any evidence to the contrary. During the course of a shift, virtually all shift 

members in a mechanized mining unit would likely be exposed to the face. Therefore, I find that 

at least 3 miners were exposed to this hazard. 

5. The Secretary’s proposed penalty is appropriate

The Secretary’s proposed penalty in this matter is consistent with Section 110(i) of the 

Act.6

 30 U.S.C. § 820(i). This Court is guided in its final determinations by the polestar of the 

Section 110(i) penalty considerations: 

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. 

I have been further guided by Commission case law instructing how § 110(i) criteria 

should be evaluated. Inter alia, I note: the Commission’s holding in Thunder Basin Coal Co., 

19 FMSHRC 1495, 1503 (Sept. 1997) that all of the statutory criteria must be considered, but not 

necessarily assigned equal weight; and the Commission’s holding Musser Engineering, 32 

FMSHRC at 1289 that, generally speaking, the magnitude of the gravity of the violation and the 

degree of operator negligence are important factors, especially for more serious violations for 

which substantial penalties may be imposed. The Commission has affirmed that its Judges are 

not bound the Secretary’s proposals. Sec. v. Performance Coal Co., Docket No. WEVA 2008-

1825 (8/2/2013); see also 30 U.S.C. §820(i) and 29 C.F.R. §2700.30(b). The Commission has 

also held that, although there is no presumption of validity given to the Secretary’s proposed 

assessments, substantial deviation from the Secretary’s proposed assessments must be adequately 

explained using §110(i) criteria. Id. 2; see also Cantina Green, 22 FMSHRC 616, 620-621 (May 

2000). Having considered all of the above, I find the Secretary’s proposed penalty of $1,026.00 

to be appropriate. 

6

 The Secretary notes that his proposed penalty was determined by using the points table 

calculation contained in 30 C.F.R. § 100.3. 

36 FMSHRC Page 2395

4. The violation was properly assessed as moderate negligence, with

3 persons affected
ORDER 

The Secretary’s Motion for Summary Decision is GRANTED, and Emerald Coal 

Resources, LP, is hereby ORDERED to pay the Secretary of Labor the sum of $1,026.00 within 

30 days of the date of this Order.7

/s/ Janet G. Harner

Janet G. Harner 

Administrative Law Judge 

Distribution: (Certified Mail) 

Noah Anstraus, Esq., Office of the Solicitor, U.S. Dept. of Labor, Suite 630E, The Curtis Center, 

170 S. Independence Mall West, Philadelphia, PA 19106-3306 

R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401 Liberty 

Ave., Pittsburgh, PA 15222 

7

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

DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390 

36 FMSHRC Page 2396
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004 

August 25, 2014 

AMENDED CERTIFICATION FOR INTERLOCUTORY REVIEW

Before: Judge Feldman 

This matter concerns certification for interlocutory review, pursuant to Commission Rule 

76(a)(1)(i), of an Order Requiring Secretary’s Pre-Hearing Statement (“Oak Grove Order”), 

36 FMSHRC __, slip op. (June 12, 2014) (ALJ), in the above-captioned proceedings involving 

Oak Grove Resources, LLC. 29 C.F.R. § 2700.76(a)(1)(i). The Oak Grove Order concerns the 

long-standing and controlling question of law regarding the requisite evidentiary parameters for 

imposing enhanced civil penalties under the flagrant violation provisions of section 110(b)(2) of 

the Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement and 

New Emergency Response Act of 2006 (“Mine Act” or “the Act”).1

 30 U.S.C. § 820(b)(2).

1

 Section 110(b)(2) provides: 

Violations under this section that are deemed to be flagrant may be assessed a civil 

penalty of not more than $220,000 [adjusted for inflation]. For purposes of the 

preceding sentence, the term “flagrant” with respect to a violation means a reckless or 

repeated failure to make reasonable efforts to eliminate a known violation of a 

mandatory health or safety standard that substantially and proximately caused, or 

reasonably could have been expected to cause, death or serious bodily injury.

 30 U.S.C. § 820(b)(2) (emphasis added). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

OAK GROVE RESOURCES, LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDINGS 

Docket No. SE 2013-301 

A.C. No. 01-00851-315187-01 

Docket No. SE 2013-352 

A.C. No. 01-00851-317727 

Docket No. SE 2013-368 

A.C. No. 01-00851-319550 

Docket No. SE 2013-399 

A.C. No. 01-00851-320606-01 

Mine: Oak Grove Mine 

36 FMSHRC Page 2397

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:
The Oak Grove Order addresses an alleged flagrant violation of section 75.4002

 cited in 

104(d)(2) Order No. 8520664 in Docket No. SE 2013-368. The cited condition concerns float 

coal dust on the roof, ribs, footwall, and belt structure, and hard packed coal fines in contact with 

moving belt rollers, in the Main North 3 belt entry. Order No. 8520664 does not identify any 

ignition sources, such as defective rollers or misaligned belts, in proximity to the cited 

accumulations. The Oak Grove Order is incorporated by reference. The Oak Grove Order noted 

that the Secretary has acknowledged that a violation that does not otherwise satisfy the gravity 

requirements in section 110(b)(2) cannot be elevated to a flagrant violation solely based on prior 

predicate violations.3

 Oak Grove Order, 36 FMSHRC __, slip op. at 5 (citing Sec’y of Labor’s 

Resp. to Order Scheduling Briefing at 5-6 (Apr. 22, 2014)). 

With respect to gravity, in preparation for a hearing, to avoid unnecessary proof and to 

advance rulings on the admissibility of evidence, the Oak Grove Order required the Secretary to 

present a pre-hearing statement that was consistent with the flagrant provisions of section 

110(b)(2). 29 C.F.R. § 2700.53(a)(1),(a)(2). Namely, the Oak Grove Order required the 

Secretary to explain why he believed the cited violative condition could not reasonably escape 

notice because it was conspicuously dangerous, and whether the cited condition could reasonably 

be expected to be the “substantial and proximate cause” of “death or serious bodily injury,” 

rather than a contributing cause of an injury of a reasonably serious nature. Oak Grove Order, 

36 FMSHRC __, slip op. at 13-14. 

As noted, a flagrant violation is one “that substantially and proximately caused, or 

reasonably could have been expected to cause, death or serious bodily injury.” 30 U.S.C. 

§ 820(b)(2) (emphasis added). In contrast, it is well-settled that a violation is significant and

substantial (“S&S”) when there is a “reasonable likelihood that the hazard contributed to by the 

violation will result in an event in which there is an injury [of a reasonably serious nature].” 

U.S. Steele Mining, 6 FMSHRC 1834, 1836 (Aug. 1984); Mathies Coal Co., 6 FMSHRC 1, 3-4 

(Jan. 1984). Obviously, all violations properly designated as flagrant are S&S in nature. As 

flagrant violations are reserved for only the most serious conditions that are both obvious and 

extremely dangerous, clearly most violations designated as S&S cannot properly be designated 

as flagrant. 

2

 30 C.F.R § 75.400 provides: 

Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, 

and other combustible materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on diesel- powered and electric equipment 

therein. 

3

 Although the Secretary acknowledges that a violation, that does not otherwise satisfy the gravity 

requirements in section 110(b)(2), cannot be elevated to a flagrant violation solely based on prior 

predicate violations, the Commission has determined that a history of prior violations is a relevant 

consideration. See Wolf Run Mining Co., 35 FMSHRC 536 (Mar. 2013). Consequently, the Secretary 

relies on two violations in the present consolidated cases to serve as predicates for Order No. 8520664: 

namely, Order Nos. 4694424 in Docket No. SE 2013-399 and 8524255 in Docket No. SE 2013-301, with 

proposed penalties of $32,800.00 and $9,800.00, respectively. Sec’y’s Pre-Hearing Statement at 3-4 

(Aug. 7, 2014). These proposed penalties are significantly less than the maximum civil penalty of 

$70,000, adjusted for inflation, available under section 110(b)(1). 

36 FMSHRC Page 2398
In response to the Oak Grove Order, the Secretary submitted his Pre-Hearing Statement 

on August 7, 2014. However, the Secretary’s Pre-Hearing statement failed to differentiate the 

criteria for demonstrating a S&S violation from the evidentiary requirements necessary to 

support a section 110(b)(2) flagrant violation. The Secretary’s Pre-Hearing Statement provided 

the following justification for his alleged flagrant designation: 

Because the accumulations included float coal dust and coal dust, they constituted 

a significant and immediate source of fuel for a mine fire or an immediate source 

of fuel for a coal dust explosion. An operating conveyor belt system in an 

underground coal mine is an obvious and significant source of sparking and 

burning hazards because of the presence of the belt conveyor, belt rollers and 

other proximate sources of friction heat and ignition. In the present case, hard 

packed coal fines were in contact with moving rollers on the belt line in multiple 

locations along the belt entry. Given these ignition sources, it is reasonably 

expected that, as normal operations continued, serious and/or deadly injures from 

burns and smoke inhalation would result from a fire or explosion. These injuries 

would be the proximate and direct result of the fire or explosion because the 

accumulations would be the necessary fuel source that, when combined with 

oxygen and an ignition source, would cause the fire or explosion. Because the 

accumulations existed over a number of shifts and were known to multiple agents 

of the operator, this violation standing alone constitutes a repeated flagrant 

violation. 

Sec’y Pre-Hearing Statement at 2 (Aug. 7, 2014). 

The Secretary’s position is problematic in that it obfuscates rather than clarifies the 

controlling question of law in this matter. Section 75.400, which prohibits combustible coal dust 

accumulations, is the most frequently cited mandatory standard in underground coal mines.4

 

Furthermore, the terms “sources of ignition” and “potential sources of ignition” are not 

synonymous. It is the ignition, rather than the fuel, that is the proximate cause of a fire or 

explosion. Thus, the Oak Grove Order stands for the proposition that it is the presence of an 

ignition source that supports a reasonable expectation that death or serious bodily injury will 

occur. While presuming the presence of an ignition source based on a future malfunction that 

may occur during the course of continued mining operations may support an S&S designation, it 

is not an adequate basis for demonstrating a flagrant violation. To assume ignition sources, such 

as defective heat-producing rollers, misaligned friction-producing belts, or defective methane 

monitors that may proximately cause an explosion that can be propagated by the subject cited 

coal dust accumulations, would render the vast majority of section 75.400 violations as flagrant 

under section 110(b)(2). 

4

 For example, citations concerning section 75.400 violations constituted 10.47 percent of all 

citations issued in 2013, and currently constitute 10.61 percent of all citations issued in 2014. MSHA, 

Most Frequently Cited Standards, www.msha.gov/stats/top20viols/top20viols.asp (accessed June 12, 

2014). 

36 FMSHRC Page 2399
It is not uncommon for coal dust to accumulate on the mine floor along conveyors and in 

proximity to belt rollers. Significantly, although a portion of the subject coal dust accumulations 

was allegedly touching rollers, the Secretary does not allege any relevant defects in the rollers or 

belt alignment. Surely, the Secretary would be reticent to concede that accumulations in 

proximity to, or that are touching, properly-functioning rollers constitute per se flagrant 

violations. However, when reduced to its core, the Secretary, in essence, is masking a per se 

approach by utilizing a traditional Mathies S&S analysis that would permit the vast majority of 

unwarrantable section 75.400 violations to be designated as flagrant. For it is axiomatic that an 

S&S designation requires consideration of both the time frame that a violative condition existed 

prior to the issuance of a citation, and the time that it would have existed if normal mining 

operations had continued. Bellefonte Lime Co., 20 FMSHRC 1250 (Nov. 1998). 

Indistinguishable from this traditional S&S analysis, the Secretary avers that to support a flagrant 

designation potential ignition sources should be viewed in the context of continued normal 

mining operations. Sec’y Pre-Hearing Statement at 2 (Aug. 7, 2014). 

Commission Rule 76(a)(1)(i) provides that a Judge may certify, upon his own motion, 

that his interlocutory ruling involves a controlling question of law and immediate review will 

materially advance the final disposition of the proceeding. 29 C.F.R. § 2700.76(a)(1)(i). The 

issue presented in the Oak Grove Order is whether the traditional S&S analysis under Mathies 

can be used to support a flagrant designation under section 110(b)(2), and, if not, what the proper 

analysis should be. Resolution of this issue will materially advance the final disposition of these 

proceedings, as well as other flagrant cases. Resolution of this long-standing unresolved 

question may result in the settlement of this case, as well as other cases that have been stayed 

pending a determination of the relevant evidentiary criteria for a flagrant designation. 

In certifying this issue for interlocutory review, I am not alone in seeking clarity from the 

Commission on this issue. In this regard, both Judge Barbour and I have certified similar issues 

to the Commission that ultimately eluded Commission disposition because the Secretary 

withdrew the subject flagrant designations. Wolf Run Mining Co., 35 FMSHRC 536 (Mar. 

2013); Conshor Mining, LLC, 34 FMSHRC 571 (Mar. 2012). The Administrative Law Judge’s 

collective need for Commission guidance on this issue is emphasized by Judge Zielinski’s recent 

opinion in American Coal Co., 36 FMSHRC 1311 (May 2014) (ALJ), which deleted flagrant 

designations alleged by the Secretary.

5

 In his opinion, Judge Zielinski thoughtfully summarized 

his consternation, as well as that of several other Judges, with the Secretary’s unreasonable 

attempts to broaden the scope of the flagrant provisions of section 110(b)(2): 

As noted in Wolf Run, section 110(b)(2) should be interpreted consistent with the 

Mine Act's graduated enforcement scheme. 35 FMSHRC at 541. The Commission 

held in Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Mine Act's 

enforcement scheme, provides for “increasingly severe sanctions for increasingly 

serious violations or operator behavior.” 9 FMSHRC at 2000 (quoting Cement 

 5

 The Secretary filed Petition for Discretionary Review (PDR) of Judge Zielinski’s American 

Coal Co. decision on June 17, 2014. However, the PDR was limited to Judge Zielinski’s deletion of the 

unwarrantable failure designations concerning the subject violations. Thus, the Secretary has once again 

eluded Commission review of the criteria for a flagrant violation by declining to appeal Judge Zielinski’s 

deletion of the subject flagrant designations. 

36 FMSHRC Page 2400
Div. Nat'l. Gypsum Co., 3 FMSHRC 822, 828 (Apr. 1981). In Stillhouse, Judge 

Paez noted that “[i]n Emory Mining, the Commission interpreted the 

unwarrantable failure language of section 104(d) citations and orders in light of 

th[e graduated enforcement] scheme of escalating sanctions. Here, if a violation is 

determined to be flagrant, then the Commission is authorized to impose the 

highest amount of civil penalties available under the Mine Act, up to $220,000 

per violation.” 33 FMSHRC at 802. 

The substantial civil penalties that can be imposed for flagrant violations are 

several rungs up the graduated enforcement ladder from even more serious 

violations charged under section 104(d). Accordingly, flagrant violations should 

denote conspicuously bad, offensive, or outrageous conduct. As Judge Paez noted 

in Stillhouse, “[t]he only thing that is apparent from the [limited] legislative 

history is that Congress and the President intended flagrant violations to target 

particularly severe violations of the mine safety and health regulations in order to 

promote regulatory compliance and miner safety.” 33 FMSHRC at 799. In that 

regard, I agree, in principle, with Judge Feldman's analysis in Conshor Mining, 

LLC, 33 FMSHRC 2917, (Nov. 2011), that a flagrant violation must be 

conspicuous and egregious, and the fact that Congress did not simply amend 

section 110(a) of the Act to raise the general statutory penalty ceiling evidences 

something considerably more than an intent to deter repeated unwarrantable 

failure violations. 

The cases brought by the Secretary and that have been decided by ALJs thus far, 

at least under the “reckless” prong of the statute, have involved truly outrageous 

conduct. Stillhouse involved egregious conduct by several mine management 

personnel who ignored prior warnings from MSHA and deliberately violated the 

mine's approved ventilation plan on more than one occasion. Their actions created 

a serious risk of a mine disaster and threatened the lives of the entire mining crew, 

which was left underground to produce coal while the main mine fan was turned 

off, and then restarted. Three mine managers plead guilty to criminal felony 

charges for their conduct. In Roxcoal, Inc., 35 FMSHRC 625 (Mar. 2013), a 

flagrant violation was affirmed under the “reckless” prong of the statute where an 

operator's chief electrician deliberately circumvented safety measures by taping 

down a switch that could deenergize power, and then assigned miners to work on 

the equipment in close proximity to 7,200 volts of electric power. He also failed 

to take any steps to eliminate the violation and the extremely hazardous condition. 

As a result, a miner suffered an injury resulting in permanent disability. 

The Secretary's ventures into the “repeated failure” prong of the flagrant statute 

have often strayed from the egregious conduct principle and have met with less 

success. As noted above, the Secretary voluntarily withdrew the ““repeated 

failure” flagrant allegations in Wolf Run and Conshore Mining. Alleged repeated 

failure flagrant violations were rejected in Bowie Resources and Blue Diamond.

The “screening factors,” now broadened considerably by the Secretary's evolving 

interpretation of the statute, appear to sweep within their ambit a substantial 

36 FMSHRC Page 2401
portion, if not a vast majority, of [S&S] violations cited under section 104(d) of 

the Act. The result is that substantial penalties have been assessed under section 

110(b)(2) for violations that are very similar, if not identical, to violations for 

which penalties have been assessed under section 110(a)(1) that have not even 

reached the maximum amount allowed under that section. 

The Secretary's lone success was the American Coal case, in which two repeated 

failure violations were held to be flagrant under a narrow reading of the statute. 

Order No. 7490584, charged an S&S and unwarrantable failure violation of the 

accumulations standard, 30 C.F.R. 75.400, that was found to have been the result 

of the operator's high negligence, and was reasonably likely to have resulted in 

lost work days or restricted duty injuries to more than 10 persons. The conditions 

were found to have existed for at least three shifts, and were known to the 

operator because they had been noted on reports of required examinations during 

those shifts, but had not been corrected. The operator's failure to eliminate the 

known violation during each of the three shifts was held to satisfy the repeated 

failure element, and the violation was found to be flagrant. 

Order No. 7490599, also charged an S&S and unwarrantable violation of the 

accumulations standard. It was found to have been the result of the operator's 

moderate negligence, and was reasonably likely to have resulted in serious or fatal 

injuries to 6 persons. It was found that the accumulations likely “began building 

up about two shifts before the violation was cited” and the violation was found to 

have existed “for two shifts.” 35 FMSHRC at 2236. The conditions had not been 

noted on reports of examinations. However, it was found that the operator knew 

or should have known of the violation because the conditions were obvious and 

should have been discovered during required examinations. Its failure to eliminate 

the violation during either of the two shifts was held to satisfy the repeated failure 

element. 

While I agree with much of Judge McCarthy's analysis in American Coal, I am 

concerned that it could be read to include a large number of violations that were 

never intended to be addressed by the statute. Can constructive knowledge of a 

violation that existed for the better part of two shifts, resulting in a finding that the 

operator was moderately negligent, be squared with the concept that the statute 

was intended to address egregious conduct, or particularly severe violations? Are 

those valid conclusions regarding the intent of Congress? Similarly, can a 

violation that was reasonably expected to result in lost work days or restricted 

duty injuries, and that would not have passed the Secretary's screening device 

requirement for at least a permanently disabling injury, be said to be expected to 

result in death or serious bodily injury within the meaning of the statute? 

Hopefully, these and other questions will soon be answered by the Commission. 

Even in the absence of a review of all reported decisions involving accumulations 

violations cited under section 104(d), I am confident that it would be difficult to 

identify more than a handful that did not involve an opinion by the issuing 

36 FMSHRC Page 2402
inspector that the conditions had existed for two shifts or longer, and that injuries 

at least as severe as lost work days were reasonably expected.41 Could all such 

violations be classified as repeated failure flagrant violations, and assessed 

penalties nearly four times higher than the most serious non-flagrant violations? 

American Coal Co., 36 FMSHRC at 1356-58. 

ORDER

In view of the above, the June 12, 2014, Order Requiring Secretary’s Pre-Hearing 

Statement setting forth the evidentiary criteria for a flagrant designation under section 110(b)(2) 

of the Act is certified for interlocutory review pursuant to Commission Rule 76(a)(1)(i).6 7

 /s/ Jerold Feldman 

 Jerold Feldman 

 Administrative Law Judge 

Distribution: (Electronic and Certified Mail) 

Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401 Liberty 

Avenue, Pittsburgh, PA 15222 

/acp 

 6

 My certification for interlocutory review under Commission Rule 76(a)(1)(i) was held in 

abeyance to provide an opportunity for the Secretary to seek interlocutory review of the Oak Grove 

Order. After the Secretary was granted a 30-day extension to respond to the Oak Grove Order, the 

Secretary filed the required pre-hearing statement on August 7, 2014. My certification was further 

delayed by the parties’ representation that they were engaging in settlement negotiations, which have not 

been fruitful. 

7

 The hearing in these matters, scheduled for September 16, 2014, has been stayed pending the 

disposition of this Certification for Interlocutory Review. 

36 FMSHRC Page 2403
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th STREET, SUITE 443 

DENVER, COLORADO 80202-2536 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

August 27, 2014 

ORDER DENYING RESPONDENT’S MOTION TO DISMISS

Before: Judge Miller 

This case is before me on a Complaint of Discrimination brought by Mona Kerlock, on 

her own behalf, pursuant to section 105(c) of the Federal Mine Safety and Health Act of 1977, as 

amended, 30 U.S.C. § 815(c) (the “Mine Act” or “Act”). The Respondent, Asarco, LLC, has 

filed a motion to dismiss for failure to state a claim. For reasons that follow, I DENY

Respondent’s motion. 

On March 31, 2014 Complainant, Mona Kerlock, filed a discrimination complaint with 

the Secretary of Labor, Mine Safety and Health Administration. MSHA investigated the 

complaint and, based upon its review of the information gathered, determined that there was not 

sufficient evidence to establish that a violation of section 105(c) occurred. Subsequently, on 

June 17, 2014, Complainant sent to the Commission a letter stylized as a “Request for Appeal” in 

which she sought to proceed pro se pursuant to section 105(c)(3) of the Act. On August 12, 2014 

Respondent filed a motion to dismiss for Complainant’s failure to state a claim. Complainant did 

not file a response to the motion. As a result, and given that Kerlock is proceeding pro se, 

information found in the original complaint, and file in general, is relied upon as a part of the 

basis for this decision. 

 Asarco argues that this matter should be dismissed due to Complainant’s failure to state a 

claim of discrimination under section 105(c) of the Mine Act. Specifically, Asarco argues that 

Complainant failed to allege that she engaged in activity protected under the Act and also failed 

to allege that she suffered an adverse action as a result of protected activity. Asarco Mot. 1, 7. 

 Asarco asserts that Complainant did not allege, and did not engage, in protected activity 

since her complaints involved personal health issues, and not safety hazards specific to the mine. 

Since the Mine Act protects against hazards in the work environment controlled by the mine 

operator, and not against problems related to a particular miner, Complainant’s allegation of 

adverse treatment due to her illness falls outside of the scope of the Mine Act. Id. At 8. Next, 

Respondent contends that the other non-personal-health-related claims of protected 

MONA KERLOCK, 

 Complainant, 

v. 

ASARCO, LLC, 

 Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2014-851-M 

RM-MD 14-10 

Ray Mine 

Mine ID: 02-00150 

36 FMSHRC Page 2404

:

:

:

:

:

:

:
 activity cannot be considered protected activity under the Act given that those actions were 

never brought to the attention of Asarco. Id. at 9. 

 

 Finally, Asarco argues that Complainant did not allege, and did not suffer, an adverse 

action given that Respondent’s placing of Complainant on short term disability was not an 

adverse action, and was motivated solely by her doctor’s notes and medical condition. Id. at 10-

11. Based on Complainant’s doctor’s notes and medical condition, Respondent made a business 

decision in the interest of safety to place her on paid leave. Doing so prevented any risk of 

Complainant suffering a severe reaction while driving a haul truck, which would have 

endangered both Complainant and others. Id. 

 Respondent’s motion to dismiss for failure to state a claim is treated as a motion for 

summary decision for purposes of this order. The Commission’s procedural rules do not provide 

formal guidance on a motion to dismiss for failure to state a claim. However, Commission 

judges addressing similar motions have been guided by Federal Rules of Civil Procedure 

12(b)(6) and 12(c) and treated those filings as motions for summary decision. See e.g., Sec’y of 

Labor on behalf of Chaparro v. Comunidad Argricola Bianci, Inc., 32 FMSHRC 1517 (Oct. 

2010) (ALJ). I agree and address Respondent’s motion to dismiss, first, as I would a motion for 

summary decision under Commission Procedural Rule 67. 

 Commission Procedural Rule 67 sets forth the grounds for granting summary decision 

and requires that it shall be granted only if the entire record shows: 

(1) That there is no genuine issue as to any material fact; and 

(2) That the moving party is entitled to summary decision as a 

matter of law. 

29 C.F.R. § 2700.67. The Commission has explained that summary decision is an extraordinary 

procedure, and, in reviewing the record, the judge should do so in the light most favorable to the 

non-moving party. Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994); Hanson 

Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007). 

 In order to establish a prima facie case of discrimination under section 105(c)(1), a 

complaining miner must show: (1) that they engaged in protected activity; and (2) that the 

adverse action they complain of was motivated at least partially by that activity. Driessen v. 

Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Secretary on behalf of Robinette v. 

United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981); Secretary on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev'd on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981). A material fact is one that is 

indispensable to the case, the absence of which would render the case unsupported. Black’s Law 

Dictionary 881 (5th ed. 1979). Accordingly, facts addressing these two elements of a 105(c) 

claim are generally “material” for purposes of a summary decision analysis. In this case, after 

review of the entire record, I find that there are genuine issues as to material facts. 

 I find that Complainant has alleged facts which contradict those offered by Respondent, 

and support a finding that material facts are in dispute. Respondent asserts that Complainant did 

36 FMSHRC Page 2405
not allege, and did not engage, in protected activity, nor did she suffer an adverse action. 

However, Complainant did allege that she, along with others at the mine, complained about dust 

in the area of 2 Shovel and 5A Dump, and that, subsequently, she was placed on medical leave, 

without full pay, and sent home despite her contention that she could have worked in other areas 

at the mine. Kerlock Request for Appeal 1, 3-5. While Respondent asserts that Kerlock’s 

complaints involved personal health issues and not safety hazards specific to the mine, it 

acknowledges in its motion that driving the haul truck after being exposed to dust could create a 

hazard. Further, Respondents’ argument regarding a lack of adverse action is premised more on 

its belief that any adverse action was motivated not by protected activity, but rather by other 

factors, namely doctor’s notes and Complainant’s medical condition. However, I find that 

Complainant has alleged facts that could support a viable claim that placing her on medical leave 

was motivated by her dust complaint. Accordingly, I find that material facts remain in dispute 

and the Respondent has not demonstrated that there are no facts which could support the claims 

of protected activity and adverse action. 

 I also find that the original complaint and subsequent Request for Appeal satisfy the 

minimal burden for pleadings in a 105(c) proceeding. See Ribble v. T & M Dev. Co., 22 

FMSHRC 593, 595 (May 2000). In order to satisfy the Commission’s procedural rules, the 

discrimination complaint need only “include a short and plain statement of the facts, setting forth 

the alleged . . . discrimination or interference, and a statement of the relief requested.” 29 C.F.R. 

§ 2700.42. As discussed above, I find that Complainant has alleged that she engaged in 

protected activity and suffered an adverse action. Further, I find that her pleadings clearly set 

forth the relief she is requesting. Kerlock Request for Appeal 4-5. Accordingly, I find that 

Complainant’s pleadings satisfy the Commission’s procedural rules. I note that the Commission 

has acknowledged that, given the difficulty with establishing whether adverse action is motivated 

by the protected activity, it would be inappropriate to require a pro se litigant to prove the 

motivation behind the alleged discrimination at such a preliminary stage of the proceeding when 

only a basic pleading pursuant to Commission Procedural Rule 42 is required. Perry v. Phelps 

Dodge Morenci, Inc., 19 FMSHRC 1918, 1921 (Nov. 1996). 

 Finally, I find that Complainant’s status as a pro se litigant affords her certain protections 

from Respondent’s challenge to the adequacy of her pleadings. Commission judges have 

recognized that pro se litigants may not be equipped to make factual and legal determinations. 

Fred Estada v. Freeport McMoRan Tyrone, Inc., 35 FMSHRC 2313, 2315-2316 (July 2013) 

(ALJ). The Commission has explained that, in pro se discrimination proceedings under section 

105(c)(3) of the act, a complainant’s pleadings should be held to a lower standard than those 

prepared by attorneys, and motions to dismiss for failure to state a claim should be viewed with 

disfavor and rarely granted. Perry v. Phelps Dodge Morenci, Inc., 19 FMSHRC 1918, 1920 

(Nov. 1996); see also Ribble v. T & M Dev. Co., 22 FMSHRC 593 (May 2000). Further, 

Congress has directed that section 105(c) be “construed expansively” so as to assure that miners 

not be inhibited from exercising rights under the Mine Act. S. Rep. No. 95-11, at 36 (1977), 

reprinted in Senate Subcomm. on Labor, Comm. on Human Res,. Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 624 (1978)). Given the leniency advocated by 

the Commission with regard to review of pro se complainants’ pleadings, and Congress’ 

direction that section 105(c) be construed expansively, I find that summary dismissal of this 

proceeding is inappropriate. 

36 FMSHRC Page 2406
 I find that, based on the record before me, a dispute of material fact exists. Further, I find 

that, while Complainant may have engaged in other protected activities, and suffered other 

adverse action, she need only allege one set of facts which support her claim, which she has 

done. Finally, I find that, given Complainant’s status as a pro se litigant, it would be 

inappropriate to summarily dismiss this matter. Asarco’s motion is therefore, DENIED. 

 /s/ Margaret A. Miller

 Margaret A. Miller 

 Administrative Law Judge 

Distribution: 

Mona Kerlock, P.O. Box 286, Miami, AZ 85539 

Kim Bradshaw, Corporate Safety Manager, Asarco, P.O. Box 640, Kearney, AZ 85137 

Mark N. Savit and Donna V. Pryor, Jackson Lewis, P.C., 950 17th Street, Suite 2600, 

Denver, CO 80202 

36 FMSHRC Page 2407