MARCH AND APRIL 2008 

COMMISSION DECISIONS 

04/04/2008 

04/04/2008 

04/04/2008 

04/04/2008 

04/04/2008 

04/04/2008 

04/04/2008 

04/04/2008 

04/04/2008 

04/09/2008 

04/09/2008 

04/09/2008 

04/10/2008 

04/10/2008 

04/10/2008 

04/10/2008 

04/21/2008 

04/2112008 

04/25/2008 

04/25/2008 

04/30/2008 

04/30/2008 

04/30/2008 

04/30/2008 

04/30/2008 

Thomas Torrance emp. by Buzzi Unicem, USA 

Cloverlick Coal Company, LLC. 

Panther Mining, LLC. 

Pederson Brothers, Inc. 

Pederson Brothers, Inc. 

Cemex, Inc. 

Little Buck Coal Company 

Twentymile Coal Company 

Bandmill Coal Corporation 

LaFarge North America, Inc. 

Calmat Company d/b/a Vulcan Materials 

Interwest Construction & Development Inc. 

Quality Coal Company, Inc. 

U.S. Silica Company 

Le Sueur-Richmond Slate Corp. 

Iron Mountain Quarry, LLC. 

Wabash Mine Holding Company 

Alex Energy, Inc. 

ICG Hazard, LLC. 

Currituck Sand, Inc. 

CW Electric 

Road Fork Development Co. 

Clean Energy Mining Co. 

Long Fork Coal Company 

Consolidation Coal Company 

ADMINISTRATIVE LAW JUDGE DECISIONS 

03/07/2008 

03/25/2008 

04/07/2008 

0413012008 

Gordon Sand Company 

McElroy Coal Company 

Nelson Quarries, Inc. (w/corrections) 

Jeppesen Gravel 

ADMINISTRATIVE LAW JUDGE ORDERS 

0313112008 SCP Investments, LLC. 

i 

CENT 2008-123-M 

KENT 2008-256 

KENT 2008-257 

LAKE 2008-60-M 

LAKE 2008-61-M 

PENN 2008-98-M 

PENN 2008-132 

WEST 2008-257 

WEV A 2008-288 

WEST 2008-311-M 

WEST 2008-312-M 

WEST 2008-313-M 

SE 2008-278-M 

VA 2008-81-M 

VA 2008-89-M 

WEST 2008-350-M 

LAKE 2008-268 

WEV A 2008-505 

KENT 2008-661 

SE 2008-279-M 

KENT 2008-494 

KENT 2008-512 

KENT 2008-538 

KENT 2008-633 

WEV A 2008-600 

WEST 2006-524-M 

WEV A 2007-132 

CENT 2006-178-M 

CENT 2006-184-M 

SE 2006-148-M 

Pg. 155 

Pg. 158 

Pg. 161 

Pg. 164 

Pg. 167 

Pg. 170 

Pg. 174 

Pg. 177 

Pg. 180 

Pg. 183 

Pg. 186 

Pg. 189 

Pg. 192 

Pg. 195 

Pg. 198 

Pg. 201 

Pg.204 

Pg.207 

Pg. 210 

Pg.214 

Pg. 217 

Pg.220 

Pg.224 

Pg. 228 

Pg.232 

Pg. 235 

Pg.237 

Pg.254 

Pg.324 

Pg.341 

MARCH AND APRIL 2008 

There were no cases in which REVIEW was either granted or denied. 

ii 

COMMISSION ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 4, 2008 

Docket No. CENT 2008-123-M 

A.C. No. 14-00162-122958 A 

THOMAS TORRANCE, employed by 

BUZZI UNICEM, USA 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On December 4, 2007, the Commission received from 

Thomas Torrance {"Torrance") a motion by counsel seeking to reopen a penalty assessment 

against Torrance under section llO(c) of the Mine Act, 30 U.S.C. § 820(c), that may have 

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

§ 815(a). 

Under the Commission's Procedural Rules, an individual charged under section 110( c) 

has 30 days following receipt of the proposed penalty assessment within which to notify the 

Secretary of Labor that he or she wishes to contest the penalty. 29 C.F.R. § 2700.26. If the 

individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order 

of the Commission. 29 C.F.R. § 2700.27. 

On July 23, 2007, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued a proposed penalty assessment to Torrance, alleging that he was personally 

liable under section 110( c) of the Mine Act for an order issued to his employer, Buzzi Unicem, 

USA. fu his motion and accompanying affidavit, Torrance asserts that he mailed the form 

contesting the penalty on August 18, 2007. Nevertheless, Torrance received a delinquency notice 

from MSHA in early November 2007, and according to Torrance, MSHA states that it never 

received the notice of contest form. Torrance maintains that the assessment never became a final 

order, but that if it is deemed to have become one, the proceeding should be reopened so that 

30 FMSHRC 155 
Torrance can contest the penalty and underlying citation. The Secretary does not oppose 

reoperung. 

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

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

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

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

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

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

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

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

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

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

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

Having reviewed Torrance's request, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether Torrance failed to timely 

contest the penalty proposal and, if so, whether good cause exists for granting relief from the 

final order. If Torrance timely contested the penalty, or if it is determined that he did not but that 

relief from the final order is appropriate, this case shall proceed pursuant to the Mine Act and the 

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

30FMSHRC 156 
Distribution: 

Gregory C. Ruffennach, Esq. 

1629 K Street, N .W. 

Suite 300 

Washington, D.C. 20036 

Myra J runes, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., Room 25th Floor 

Arlington, VA 22209-3939 

W. Christian Schuman, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd. 

22nd Floor West, Room 2220 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 157 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 4, 2008 

Docket No. KENT 2008-256 

AC. No. 15-18241-126999 

CLOVERLICK COAL COMP ANY LLC 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On December 6, 2007, the Commission received a letter 

requesting that the Commission reopen a penalty assessment issued to Cloverlick Coal Company 

LLC ("Cloverlick") that may have become a final order of the Commission pursuant to section 

105(a) of the Mine Act, 30 U.S.C. § 815(a). 1 

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

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

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

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

On September 12, 2007, the Department of Labor's Mine Safety and Health 

Administration issued Assessment No. 000126999, which proposed penalties for 34 citations that 

had previously been issued to Cloverlick. The operator states that it did not receive the 

assessment form until October 30, 2007. A handwritten note on the copy of the assessment 

attached to Cloverlick's letter appears to suggest that the operator returned the form on or about 

1 The letter also requested reopening of an assessment issued to an affiliated company, 

Panther Mining LLC. That request is the subject of a separate order issued today in Docket No. 

KENT 2008-257. 

30FMSHRC 158 
November 2, indicating its desire to contest 11 of the proposed penalties. The Secretary states 

that she does not oppose Cloverlick's request to reopen. 

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

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

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

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

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

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

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

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

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

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

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

Having reviewed Cloverlick's request, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether Cloverlick's contest was 

timely and, if it was not timely, whether good cause exists for granting relief from the final order. 

If Cloverlick's contest was timely, or if it is determined that it was not but that relief from the 

final order is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's 

Procedural Rules, 29 C.F.R. Part 2700. 

30 FMSHRC 159 
Distrubution: 

Larry A. Coeburn, Safety Coordinator 

Cloverlick Coal Company, LLC. 

P.O. Box 2560 

Wise VA 24293 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 160 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PANTHER MINING LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 4, 2008 

Docket No. KENT 2008-257 

A.C. No. 15-18198-127066 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On December 6, 2007, the Commission received a letter 

requesting that the Commission reopen a penalty assessment issued to Panther Mining LLC 

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

the Mine Act, 30 U.S.C. § 815(a). 1 

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

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

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

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

On September 12, 2007, the Department of Labor's Mine Safety and Health 

Administration issued Assessment No. 000127066, which proposed penalties for 80 citations that 

had previously been issued to Panther. The operator states that it did not receive the assessment 

form until October 23, 2007. In response, the Secretary states that she does not oppose Panther's 

request to reopen. She also forwarded to the Commission a copy of the assessment she received 

from Panther indicating the operator's desire to contest 35 of the proposed penalties, and which 

1 The letter also requested reopening of an assessment issued to an affiliated company, 

Cloverlick Coal Company LLC. That request is the subject of a separate order issued today in 

Docket No. KENT 2008-256. 

30 FMSHRC 161 
includes a handwritten note that appears to suggest that the operator returned the form on or 

about October 29. 

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

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

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

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

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

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

§ 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

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

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

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

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

Having reviewed Panther's request, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether Panther's contest was timely 

and, if it was not timely, whether good cause exists for granting relief from the final order. If 

Panther's contest was timely, or if it is determined that it was not but that relief from the final 

order is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's 

Procedural Rules, 29 C.F.R. Part 2700. 

Mich 

30 FMSHRC 162 
Distribution: 

Larry A. Coeburn, Safety Coordinator 

Panther Mining, LLC. 

P.O. Box 2560 

Wise, VA 24293 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22"d Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 163 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PEDERSON BROTHERS, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April4,2008 

Docket No. LAKE 2008-60-M 

A.C. No. 21-00071-128120 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On November 20, 2007, the Commission received from 

Pederson Brothers, Inc. ("Pederson") a motion by counsel seeking to reopen a penalty assessment 

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

U.S.C. § 815(a). 

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

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

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

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

On December 5, 2006, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued a citation to Pederson. On October 3, 2007, as a result of the citation, MSHA 

issued a proposed assessment of $838. Pederson states that the proposed assessment was 

forwarded to its counsel, who was traveling at the time the assessment was received at her office. 

Pederson further states that counsel's office staff, through clerical error, placed the proposed 

assessment in the wrong file and that counsel did not discover the error until November 14, 2007. 

Pederson states that it had always intended to contest the citation and penalty. The Secretary 

does not oppose the request to reopen the proposed assessment. 

30 FMSHRC 164 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

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

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

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

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

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

§ 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

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

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

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

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

Having reviewed Pederson's request, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for 

Pederson's failure to timely contest the penalty proposal and whether relief.from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

30 FMSHRC 165 
Distribution: 

Adele L. Abrams, Esq. 

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

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 166 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PEDERSON BROTHERS, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 4, 2008 

Docket No. LAKE 2008-61-M 

A.C. No. 21-00071-123814 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On November 20, 2007, the Commission received from 

Pederson Brothers, Inc. ("Pederson") a motion seeking to reopen a penalty assessment that had 

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

§ 815(a). 

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

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

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

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

On December 5, 2006, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued six citations to Pederson. In its motion, Pederson states that, on April 4, 2007, 

it filed a change in legal identity with MSHA that included a change in the company's legal 

address from one state to another. Sometime in August 2007, MSHA issued proposed penalties 

in connection with the citations but mistakenly mailed them by certified mail to Pederson's old 

address. Pederson further states in its motion that there was no one at the old address who could 

sign for the mail and forward it to the new address. On November 1, 2007, when MSHA sent 

Pederson a letter by first class mail, demanding payment in full for the proposed penalties, that 

letter was forwarded to Pederson's new address. Pederson states that it always had intended to 

30 FMSHRC 167 
contest the citations and penalties. The Secretary does not oppose the request to reopen the 

proposed assessment. 

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

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

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

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

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

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

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

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

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

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

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

Having reviewed Pederson's request, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for 

Pederson' s failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

30 FMSHRC 168 
Distribution: 

Adele L. Abrams, Esq. 

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

4 7 40 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 169 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

CEMEX, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 4, 2008 

Docket No. PENN 2008-98-M 

A.C. No. 36-00165-125280 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On November 30, 2007, the Commission received from 

Cemex, Inc. ("Cemex") a motion made by counsel to reopen a penalty assessment that had 

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

§ 815(a). 

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

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

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

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

In June 2007, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued citations to Cemex. On August 31, 2007, Cemex received a proposed 

assessment as a result of the citations that previously had been issued. Cemex states that the 

proposed assessment was addressed to its plant manager, who forwarded the assessment to its 

safety director. Cemex further states that its safety director was out of the office on travel during 

most of August, September, and October and that he was unaware of the assessment until 

sometime in October 2007. Cemex's safety director then sent a request for a hearing on the 

30 FMSHRC 170 
proposed penalties, which MSHA denied because the request was untimely. The Secretary states 

that she does not oppose Cemex' s request to reopen the proposed penalty assessment. 1 

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

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

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

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

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

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

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

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

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

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

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

1 In the letter in which she states that she does not oppose the reopening of the penalty 

assessment, the Secretary requests that Cemex clarify which of the proposed penalties and 

associated citations are to be reopened because Cemex checked only one penalty on the 

assessment form but, in addition, also checked a box on the form indicating that it wanted to 

contest aII violations. 

30 FMSHRC 171 
Having reviewed Cemex' s motion, in the interests of justice, we remand this matter to the 

Chief Administrative Law Judge for a determination of whether good cause exists for Cemex's 

failure to timely contest the penalty proposal and whether relief from the final order should be 

granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the 

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

30 FMSHRC 172 
Distribution: 

Fracina M. Segbefia, Esq. 

William K. Doran, Esq. 

Ogletree, Deakins, Nash, Smoak 

& Stewart, P.C., 

2400 N Street NW, 5'h Floor 

Washington, DC 20037 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 22th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 173 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April4,2008 

Docket No. PENN 2008-132 

A.C. No. 36-08299-130703 

Docket No. PENN 2008-142 

AC. No. 36-08299-123747 

LITTLE BUCK COAL COMP ANY 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On December 28, 2007, the Commission received from Little 

Buck Coal Company ("Little Buck") a motion made by counsel to reopen two penalty 

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

Mine Act, 30 U.S.C. § 815(a). 1 

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

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

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

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

On May 23, 2007, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued six citations and orders to Little Buck. The operator subsequently filed timely 

contests of each citation and order, and those contests are pending in Docket Nos. PENN 2007-

267-R through PENN 2007-272-R. MSHA later issued Proposed Assessment No. 000123747, 

which proposed a penalty for one of the citations, and Proposed Assessment No. 000130703, 

which proposed penalties for the other five citations and orders. 

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

docket numbers PENN 2008-132 and PENN 2008-142, both captioned Little Buck Coal Co., and 

both involving similar procedural issues. 29 C.F.R. § 2700.12. 

30FMSHRC 174 
Little Buck states that it believed it had forwarded the proposed assessments to the 

outside counsel representing it in the related contest proceedings. When that counsel learned 

from opposing counsel in the contest proceedings that neither of the proposed assessments had 

been contested within the applicable 30-day periods, she alerted Little Buck of its failure to 

forward the assessments. The Secretary states that she does not oppose Little Buck's request to 

reopen the proposed penalty assessments. 

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

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

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

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

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

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

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

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

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

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

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

Having reviewed Little Buck's motion, in the interests of justice, we remand this matter 

to the Chief Administrative Law Judge for a determination of whether good cause exists for 

Little Buck's failure to timely contest the penalty proposals and whether relief from the final 

orders should be granted. If it is determined that such relief is appropriate, this case shall 

proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

30 FMSHRC 175 
Distribution: 

Diana R. Schroeher, Esq. 

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

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA, U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 176 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 4, 2008 

Docket No. WEST 2008-257 

AC. No. 05-03836-123538 

TWENTYMILE COAL COMP ANY 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On December 10, 2007, the Commission received from 

Twentymile Coal Company ("Twentymile") a letter requesting that the Commission reopen a 

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

of the Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

On July 31, 2007, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000123538 to Twentymile, proposing penalties for 

33 citations and orders that previously had been issued to the company's Foidel Creek Mine. 

Twentymile states that the mine promptly processed and forwarded the assessment to 

Twentymile's corporate office for payment, but that due to a processing error, the 26 penalties 

that Twentymile was not contesting were not paid until October 2007. Twentymile requests 

reopening so that it can contest the other seven penalties. The Secretary states that she does not 

oppose Twentymile' s request to reopen. 

30 FMSHRC 177 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

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

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

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

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

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

§ 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

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

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

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

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

While Twentymile's request for relief addresses the mistake that led to the late payment 

of the uncontested penalties, it does not explain the company's separate failure to return the 

assessment form to MSHA in order to contest the seven penalties that it states it intended to 

contest. Consequently, we deny Twentymile's request without prejudice. See Marsh Coal Co., 

28 FMSHRC 473, 475 (July 2006). 

\ / 

30 FMSHRC 178 
Distribution: 

Lisa French, Safety Assistant, Peabody Energy/ Twentymile Coal Co., 29515 Routt County Rd., 

#27, Oak Creek, CO 80467 

W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson 

Blvd., Room 2220, Arlington, VA 22209-2296 

Myra James, Chief, Office of Civil Penalty Compliance, MSHA, U.S. Dept. Of Labor, 1100 

Wilson Blvd., 25th Floor, Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 179 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 4, 2008 

Docket No. WEV A 2008-288 

A.C. No. 46-05086-124355 

BANDMILL COAL CORPORATION 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On December 7, 2007, the Commission received from 

Bandmill Coal Corporation ("Bandmill") a motion made by counsel to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

On August 8, 2007, the Department of Labor's Mine Safety and Health Administration 

issued Proposed Assessment No. 000124355 to Bandmill, proposing penalties for a citation and 

three orders that previously had been issued to the company. Bandmill's safety director states 

that he meant to forward the assessment to Bandmill's outside counsel handling the pending 

contests of the three orders so that the penalties for the three orders could also be contested. He 

further states that instead he mistakenly included the assessment with two other assessments 

issued to an affiliated company which he had telecopied to different outside counsel representing 

the affiliate. Outside counsel for the affiliate states that he assumed that counsel for Bandmill 

also received the forwarded assessment meant for that firm, but the firm did not. The Secretary 

states that she does not oppose Bandmill 's request to reopen the proposed penalty assessment. 

30 FMSHRC 180 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

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

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

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

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

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

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

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

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

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

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

Having reviewed Bandmill 's motion, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for 

Bandmill' s failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

'· 

30 FMSHRC 181 
Distribution: 

Jason M. Nutzman., Esq. 

Dinsmore & Shohl, LLP, 

P.O. Box 11887, 

900 Lee Street, 

Suite 600, 

Charleston, WV 25339 

W. Christian Schumann, Esq., 

Office of the Solicitor, 

U.S. Department of Labor, 

1100 Wilson Blvd., Room 2220, 

Arlington, VA 22209-2296 

Myra James, 

Chief, 

Office of Civil Penalty Compliance, 

MSHA, 

U.S. Dept. Of Labor, 

1100 Wilson Blvd., 25th Floor, 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 182 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 9, 2008 

Docket No. WEST 2008-311-M 

A.C. No. 45-00805-130676 

LAFARGE NORTH AMERICA, INC. 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On January 7, 2008, the Commission received from Lafarge 

North America, Inc. ("Lafarge") a motion to reopen a penalty assessment that had become a final 

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

§ 815(a). 

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

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

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

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

Over a period of several days in September 2007, the Department of Labor's Mine Safety 

and Health Administration ("MSHA") issued eleven citations to Lafarge. On November 1, 2007, 

MSHA issued a proposed penalty assessment for the citations. Lafarge states that it contested the 

penalties on December 12, 2007, and believed it had timely filed the contest. However, it 

subsequently received correspondence from MSHA stating that the proposed penalty had become 

a final order on December 8, 2007. Lafarge adds that, due to an internal mistake and confusion 

as to the date ofreceipt of the proposed assessment form, the form was not processed in a timely 

manner. The Secretary states that she does not oppose Lafarge's request for relief. 

30 FMSHRC 183 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

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

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

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

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

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

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

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

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

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

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

Having reviewed Lafarge' s motion, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for 

Lafarge' s failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

30 FMSHRC 184 
Distribution: 

Karen L. Johnston, Esq. 

Jackson Kelly PLLC, 

1099 l81

h Street, 

Suite 2150, 

Denver, CO 80202 

W. Christian Schumann, Esq. 

Office of the Solicitor, 

U.S. Department of Labor, 

1100 Wilson Blvd., 

Room2220, 

Arlington, VA 22209-2296 

Myra James, 

Chief, 

Office of Civil Penalty Compliance, 

MSHA, 

U.S. Department of Labor, 

1100 Wilson Blvd., 

25th Floor West, 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 185 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 9, 2008 

Docket No. WEST 2008-312-M 

A.C. No. 04-01924-128052 

CALMAT COMPANY, d/b/a 

VULCAN MATERIALS COMP ANY, 

WESTERN DNISION 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On January 7, 2008, the Commission received from Calmat 

Company, d/b/a/ Vulcan Materials Company, Western Division ("Vulcan") a letter from counsel 

seeking to reopen a penalty assessment that had become a final order of the Commission 

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

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

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

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

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

On October 3, 2007, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued a proposed penalty assessment, A.C. No. 000128052, to Vulcan for an order 

and a citation. Vulcan states that it inadvertently sent the form contesting the penalty assessment 

to MSHA's local Western District office in Vacaville, California, instead of to the MSHA office 

located in Arlington, Virginia. Vulcan attached the return receipt allegedly indicating that the 

30 FMSHRC 186 
notice of contest was received by MSHA at its office in Vacaville. The Secretary states that she 

does not oppose Vulcan's request to reopen the penalty assessment. 

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

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

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

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

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

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

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

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

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

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

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

Having reviewed Vulcan's request, in the interests of justice, we remand this matter to the 

Chief Administrative Law Judge for a determination of whether good cause exists for Vulcan's 

failure to timely contest the penalty proposal and whether relief from the final order should be 

granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the 

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

30 FMSHRC 187 
Distribution: 

Scott H. Dunham, Esq., 

O'Melveny & Myers, LLP, 

400 South Hope Street, 

Los Angeles, CA 90071-12899 

W. Christian Schumann, Esq., 

Office of the Solicitor, 

U.S. Department of Labor, 

1100 Wilson Blvd., Room 2220, 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor, 

1100 Wilson Blvd., 25th Floor, 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 188 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 9, 2008 

Docket No. WEST 2008-313-M 

A.C. No. 45-03415-124697 

INTERWEST CONSTRUCTION & 

DEVELOPMENT, INC. 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On January 9, 2008, the Commission received from Interwest 

Construction & Development, Inc. ("Interwest") a petition (which the Commission shall treat as 

a motion) to reopen a penalty assessment that may have become a final order of the Commission 

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

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

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

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

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

On August 9, 2007, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued to Interwest the proposed penalty assessment at issue. The company asserts 

that it sent the form to MSHA on or about August 20, 2007, indicating that it wished to contest 

the proposed penalties. However, it subsequently learned from MSHA that the agency did not 

receive Interwest's contest and that Interwest was delinquent in its payment of the penalties listed 

in the proposed assessment. The Secretary of Labor states that she does not oppose Interwest's 

request for relief. 

30 FMSHRC 189 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

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

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

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

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

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

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

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

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

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

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

Having reviewed Interwest's request, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for 

Interwest' s apparent failure to timely contest the penalty proposal and whether relief from the 

final order should be granted. If it is determined that such relief is appropriate, this case shall 

proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

30 FMSHRC 190 
Distribution: 

Michael T. Heenan, Esq., 

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 

2400 N Street NW, 5th Floor, 

Washington, DC 2003 7 

W. Christian Schumann, Esq., 

Office of the Solicitor, 

U.S. Department of Labor, 

1100 Wilson Blvd., Room 2220, 

Arlington, VA 22209-2296 

Myra James, 

Chief, 

Office of Civil Penalty Compliance, 

MSHA, 

U.S. Department of Labor, 

1100 Wilson Blvd., 25th Floor, 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 191 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 10, 2008 

Docket No. SE 2008-278-M 

AC. No. 01-03195-128840 

QUALITY COAL COMPANY, INC. 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On January 28, 2008, the Commission received from Quality 

Coal Company, Inc. ("Quality") a request to reopen a penalty assessment that had become a final 

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

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

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

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

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

On October 11, 2007, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued a proposed penalty assessment, No. 000128840, to Quality. In its request, 

Quality states that it subsequently received a second proposed penalty assessment, No. 

000128844. Quality explains that its mining foreman, who received the penalty proposals, 

erroneously believed that Quality could contest both proposed penalty assessments within 30 

days of the second assessment. Quality submits that the second proposed penalty assessment was 

timely contested and is the subject of Docket No. SE 2008-131. The operator further states that 

Proposed Assessment No. 000128840 had been routed incorrectly among its personnel. The 

Secretary states that she does not oppose Quality's request for relief. 

30 FMSHRC 192 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

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

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

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

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

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

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

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

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

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

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

Having reviewed Quality's motion, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for 

Quality's failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

30 FMSHRC 193 
Distribution: 

Hubert G. Taylor, Esq. 

Leitman, Siegal & Payne, P.C. 

600 North 20th St., Suite 400 

Birmingham, AL 35203 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-20 21 

30 FMSHRC 194 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

U.S. SILICA COMP ANY 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 10, 2008 

Docket No. VA 2008-81-M 

A.C. No. 44-02829-119439 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On January 18, 2008, the Commission received a letter from 

U.S. Silica Company ("U.S. Silica") requesting that the Commission reopen a penalty assessment 

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

U.S.C. § 815(a). 

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

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

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

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

On June 5, 2007, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued a proposed penalty assessment, A.C. No. 000119439, to U.S. Silica. U.S. 

Silica states that it mailed its contest of the proposed penalty assessment to MSHA, but that it 

appears that the contest was never received. The Secretary responds that she has no record that 

the penalty contest form was received by MSHA's Civil Penalty Compliance Office, but that she 

does not oppose U.S. Silica's request to reopen the penalty assessment. 

30 FMSHRC 195 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

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

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

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

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

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

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

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

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

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

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

Having reviewed U.S. Silica's request, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for U.S. 

Silica's failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

30 FMSHRC 196 
Distribution: 

Cris Bryan, CMSP 

U.S. Silica Company 

P.O. Box 187 

Berkeley Springs, WV 25411-0187 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 197 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MlNE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 10,2008 

Docket No. VA 2008-89-M 

AC. No. 44-00061-129587 

LE SUEUR-RICHMOND SLATE CORP. 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On January 29, 2008, the Commission received from Le 

Sueur-Richmond Slate Corp. ("Le Sueur") a letter by counsel to reopen a penalty assessment that 

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

U.S.C. § 815(a). 

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

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

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

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

On October 18, 2007, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Penalty Assessment No. 000129587 to Le Sueur. Le Sueur states 

that, after the proposed assessment was delivered, the employee who signed for the delivery 

became ill, her work load decreased, and the proposed assessment was never presented to the 

operator's officers. The Secretary states that she does not oppose Le Sueur's request to reopen. 

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

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

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

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

30 FMSHRC 198 
which, for example, a party could be entitled to relief from a final order of the Commission on 

the basis of inadvertence or mistake. See 29 C.F .R. § 2700. l (b) ("the Commission and its Judges 

shall be guided so far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 

FMSHRC at 787. We have also observed that default is a harsh remedy and that, if the 

defaulting party can make a showing of good cause for a failure to timely respond, the case may 

be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 

FMSHRC 1529, 1530 (Sept. 1995). 

Having reviewed Le Sueur's request, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for Le 

Sueur's failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

Mich 

30 FMSHRC 199 
Distribution: 

David P. Mitchel, Esq. 

Michael J. Brickhill, P.C. 

1890 Church St. 

P.O. Box 2218 

Appomattox, VA 24522 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 200 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 10,2008 

Docket No. WEST 2008-350-M 

A.C. No. 45-03175-127980 

IRON MOUNTAIN QUARRY, LLC 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On January 23, 2008, the Commission received from Iron 

Mountain Quarry, LLC ("Iron Mountain") a letter by counsel to reopen a penalty assessment that 

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

U.S.C. § 815(a). 

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

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

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

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

On October 30, 2007, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued proposed penalty assessment No. 000130280 to Iron Mountain proposing civil 

penalties for six citations that had been issued to Iron Mountain on August 23, 2007. Iron 

Mountain asserts that it timely contested those proposed penalties. The operator states that it 

subsequently received a notice from MSHA stating that Iron Mountain was delinquent in paying 

the civil penalty associated with proposed penalty assessment No. 000127980. The operator 

states that, upon further investigation, it discovered that Penalty Assessment No. 000127980 set 

forth a proposed civil penalty for Citation No. 7981307, also issued on August 23, 2007. It 

submits that it intended to contest Citation No. 7981307 but that it has no record of having 

received Proposed Assessment No. 000127980. Iron Mountain explains that if it had, in fact, 

received the proposed penalty assessment, its failure to contest the penalty associated with 

30 FMSHRC 201 
Citation No. 7981307 was due to a mistake. The Secretary states that she does not oppose Iron 

Mountain's request to reopen. For clarity, the Secretary attached a copy of Proposed Assessment 

No. 000127980 (dated October 2, 2007), and a tracking report showing delivery. 

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

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

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

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

which, for example, a party could be entitled to relief from a final order of the Commission on 

the basis of inadvertence or mistake. See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges 

shall be guided so far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 

FMSHRC at 787. We have also observed that default is a harsh remedy and that, if the 

defaulting party can make a showing of good cause for a failure to timely respond, the case may 

be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 

FMSHRC 1529, 1530 (Sept. 1995). 

Having reviewed Iron Mountain's request, in the interests of justice, we remand this 

matter to the Chief Administrative Law Judge for a determination of whether good cause exists 

for Iron Mountain's failure to timely contest the penalty proposal and whether relief from the 

final order should be granted. If it is determined that such relief is appropriate, this case shall 

proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part.2700. 

30 FMSHRC 202 
Distribution: 

Paul M. Nordsletten, Esq. 

Davis, Grimm, Payne & Marra, 

701 Fifth Ave., Suite 4040 

Seattle, WA 98104 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 203 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April21,2008 

Docket No. LAKE 2008-268 

A.C. No. 11-00877-131860 

WABASH MINE HOLDING COMP ANY 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On March 14, 2008, the Commission received from Wabash 

Mine Holding Company ("Wabash") a motion by counsel seeking to reopen a penalty assessment 

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

U.S.C. § 815(a). 

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

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

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

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

On November 15, 2007, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued to Wabash proposed penalties for three citations. According to 

Wabash, it had previously filed contests to challenge the underlying citations. Wabash further 

states that a new employee in the office of its safety director did not understand that the proposed 

penalties had to be contested separately from the citations. Therefore, Wabash states that the 

1 Commissioner Robert Cohen assumed office after this case had been filed. A new 

Commissioner possesses legal authority to participate in pending cases, but such participation is 

discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In the interest of 

efficient decision making, Commissioner Cohen has elected not to participate in this matter. 

30 FMSHRC 204 
employee believed that the penalties had been contested. The Secretary states that she does not 

oppose Wabash's motion to reopen the assessment. 

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

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

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

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

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

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

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

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

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

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

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

Having reviewed Wabash's request, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for 

Wabash's failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

c ,,., ..... 

30 FMSHRC 205 
Distribution: 

Arthur M. Wolfson, Esq. 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center 

401 Liberty A venue, Suite 1340 

Pittsburgh, PA 15222 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor West 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 206 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

ALEX ENERGY, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 21, 2008 

Docket No. WEV A 2008-505 

A.C. No. 46-08787-131617 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners1 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On February 4, 2008, the Commission received from Alex 

Energy, Inc. ("Alex Energy") a motion made by counsel to reopen a penalty assessment that had 

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

§ 815(a). 

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

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

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

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

On November 13, 2007, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued Proposed Assessment No. 000131617 to Alex Energy, 

proposing penalties for 17 citations that had been issued to the company during August 2007. 

According to Alex Energy's former safety director, J.J. Meadows, upon receipt of the assessment 

he placed a check mark in the box next to each of seven of the citations to indicate his 

1 Commissioner Robert Cohen assumed office after this case had been filed. A new 

Commissioner possesses legal authority to participate in pending cases, but such participation is 

discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In the interest of 

efficient decision making, Commissioner Cohen has elected not to participate in this matter. 

30 FMSHRC 207 
recommendation to Alex Energy's attorneys that the penalties for those citations be contested. 

Meadows states that he then made arrangements for Alex Energy to pay the other ten proposed 

penalties to MSHA. Meadows never followed through with consulting counsel on the seven 

proposed penalties he wished to contest, however, nor did he realize that Alex Energy had failed 

to contest the citations until January 2008. The Secretary states that she does not oppose Alex 

Energy's request to reopen the penalty assessment as to the seven proposed penalties. 

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

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

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

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

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

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

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

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

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

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

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

Having reviewed Alex Energy's motion, in the interests of justice, we remand this matter 

to the Chief Administrative Law Judge for a determination of whether good cause exists for Alex 

Energy's failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

30 FMSHRC 208 
Distribution: 

Ramonda C. Lyons, Esq. 

Dinsmore & Shohl, LLP 

P. 0. Box 11887 

900 Lee Street, Suite 600 

Charleston, WV 25339 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor West 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 209 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ICG HAZARD, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 25, 2008 

Docket No. KENT 2008-661 

AC. No. 15-18850-135605 

Docket No. KENT 2008-662 

A.C. No. 15-18850-135609 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners1 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) {"Mine Act").2 On March 6, 2008, the Commission received from ICG 

Hazard, LLC ("ICG") motions by counsel seeking to reopen two penalty assessments that had 

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

§ 815(a). 

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

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

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

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

1 Commissioner Robert Cohen assumed office after this case had been filed. A new 

Commissioner possesses legal authority to participate in pending cases, but such participation is 

discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In the interest of 

efficient decision making, Commissioner Cohen has elected not to participate in this matter. 

2 Pursuant to Commission Procedural Rule 12, 29 C.F.R. § 2700.12, on our own motion, 

we hereby consolidate Docket Nos. KENT 2008-661 and KENT 2008-662, as both dockets 

involve similar procedural issues and similar factual backgrounds. 

30 FMSHRC 210 
On January 17, 2008, ICG received two proposed assessments issued by the Department 

of Labor's Mine Safety and Health Administration ("MSHA"). According to ICG, following 

receipt of the assessments, it forwarded them to the Director of Safety and Health for ICG's 

parent company, who reviewed the assessments. ICG states that he determined to contest certain 

penalties in both assessments. However, ICG states that clerical personnel in the director's 

office, through a misunderstanding, did not return assessment forms to MSHA indicating that the 

assessments would be contested. The Secretary states that she does not oppose the reopening of 

the assessments. 

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

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

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

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

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

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

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

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

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

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

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

30 FMSHRC 211 
Having reviewed ICG' s request, in the interests of justice, we remand this matter to the 

Chief Administrative Law Judge for a determination of whether good cause exists for ICG's 

failure to timely contest the penalty proposals and whether relief from the final orders should be 

granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the 

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

Michaei ~~ F::ClllliTillan 

30 FMSHRC 212 
Distribution: 

John M. Williams, Esq. 

Rajkovich, Williams, 

Kilpatrick & True, PLLC 

2333 Alumni Park Plaza 

Suite 310 

Lexington, KY 40517 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 213 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CURRITUCK SAND, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April25,2008 

Docket No. SE 2008-279-M 

A.C. No. 31-02188-130246 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners1 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On February 4, 2008, the Commission received from 

Currituck Sand, Inc. ("Currituck") a motion made by counsel to reopen a penalty assessment that 

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

U.S.C. § 815(a). 

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

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

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

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

On October 30, 2007, the Department of Labor's Mine Safety and Health Administration 

issued Proposed Assessment No. 000130246 to Currituck, proposing penalties for four citations 

that had been issued to the company on September 12, 2007. Currituck's Pit Manager, whose 

responsibilities at the mine include safety matters, states that the company had contested the 

citations and that he believed that the operator's counsel would be filing the notice of contest 

1 Commissioner Robert Cohen assumed office after this case had been filed. A new 

Commissioner possesses legal authority to participate in pending cases, but such participation is 

discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In the interest of 

efficient decision making, Commissioner Cohen has elected not to participate in this matter. 

30 FMSHRC 214 
with respect to the penalties. However, counsel states that she believed that Currituck had 

already filed the penalty contest form, so consequently the form was never filed. The Secretary 

states that she does not oppose Currituck's request to reopen the proposed penalty assessment. 

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

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

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

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

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

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

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

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

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

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

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

Having reviewed Currituck's motion, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for 

Currituck' s failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

30 FMSHRC 215 
Distribution: 

Adele L. Abrams, Esq 

Law Office of Adele L. Abrams, P.C 

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 216 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CW ELECTRIC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April30,2008 

Docket No. KENT 2008-494 

A.C. No. 15-05375-130003 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners1 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On February 6, 2008, the Commission received from 

counsel for CW Electric a letter seeking to reopen a penalty assessment that had become a final 

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

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

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

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

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

On October 25, 2007, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 00013003 to CW Electric, proposing penalties for 

two citations that had been issued to the contractor on June 27, 2007. The company states, 

without further explanation, that, while it intended to contest the assessment, it neither filed a 

notice of contest nor paid the penalties because it believed MSHA would reissue the assessment 

1 Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A 

new Commissioner possesses legal authority to participate in pending cases, but such 

participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In 

the interest of efficient decision making, Commissioner Cohen has elected not to participate in 

this matter. 

30 FMSHRC 217 
to a different named entity. The Secretary states that she does not oppose CW Electric' s request 

to reopen the penalty assessment. 

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

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

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

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

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

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

§ 2700.1 (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

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

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

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

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

Having reviewed CW Electric's request, in the interests of justice, we remand this matter 

to the Chief Administrative Law Judge for a determination of whether good cause exists for CW 

Electric' s failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. The judge should require CW Electric to explain the basis for its belief that 

MSHA would reissue the assessment to a different named entity. After that, if it is determined 

that relief from the final order is appropriate, this case shall proceed pursuant to the Mine Act 

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

30 FMSHRC 218 
Distribution: 

M. Scott Meachum, Esq. 

Flaherty, Sensabaugh & Bonasso, PLLC. 

200 Capitol Street 

P.O. Box 3843 

Charleston, WV 25338 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 219 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

ROAD FORK DEVELOPMENT 

COMPANY, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 30, 2008 

Docket No. KENT 2008-512 

A.C. No. 15-09830-132554 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On February 11, 2008, the Commission received from 

Road Fork Development Company Inc. ("Road Fork") a motion by counsel seeking to reopen a 

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

of the Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

On November 27, 2007, the Department of Labor's Mine Safety and Health 

Administration issued a proposed assessment to Road Fork for 12 citations that had been 

1 Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A 

new Commissioner possesses legal authority to participate in pending cases, but such 

participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In 

the interest of efficient decision making, Commissioner Cohen has elected not to participate in 

this matter. 

30 FMSHRC 220 
previously issued to the operator. Road Fork states that, following receipt of the assessment, it 

faxed the proposed assessment to the law firm which represented it in proceedings before the 

Commission. The paralegal at the law firm who is responsible for receiving and processing 

documents attempted to scan the assessment form and send it by electronic mail to the attorneys 

who were primarily responsible for handling Road Fork matters. However, because of 

unspecified technical problems, the attorneys never received the email, and no contest of the 

penalty assessment was filed. Road Fork learned of the error when it received an invoice from 

MSHA specifying unpaid assessments. The Secretary states that she does not oppose the 

reopening of the assessment. 2 

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

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

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

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

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

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

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

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

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

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

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

2 This is the first of three proceedings involving the same law firm where a breakdown in 

office procedures has been cited as the reason for contests not being filed. Orders are also being 

issued today in the other two proceedings, Clean Energy Mining Co., Docket No. KENT 2008-

538, and Long Fork Coal Co., Docket No. KENT 2008-633. In her letter in response to the 

motion filed in Long F ark, the Secretary urges that counsel take steps to ensure that such 

breakdowns do not continue and that penalty assessments are timely contested. We agree with 

this recommendation. 

30 FMSHRC 221 
Having reviewed Road Fork's request, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for Road 

Fork's failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

30 FMSHRC 222 
Distribution: 

Ramonda C. Lyons, Esq. 

Dinsmore & Shohl, LLP 

P. 0. Box 11887 

900 Lee Street 

Suite 600 

Charleston, WV 25339 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 223 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 30, 2008 

Docket No. KENT 2008-538 

A.C. No. 15-10753-119562 

CLEAN ENERGY MINING COMP ANY 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners1 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On February 12, 2008, the Commission received from Clean 

Energy Mining Company ("Clean Energy") a motion by counsel seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

On June 6, 2007, the Department of Labor's Mine Safety and Health Administration 

issued a proposed assessment to Clean Energy for 30 citations that had been previously issued to 

the operator. Clean Energy states that, following receipt of the assessment, it faxed the proposed 

1 Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A 

new Commissioner possesses legal authority to participate in pending cases, but such 

participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In 

the interest of efficient decision making, Commissioner Cohen has elected not to participate in 

this matter. 

30 FMSHRC 224 
assessment to one office of the law firm which represented it in proceedings before the 

Commission. That office was to fax the assessment to another office of the law firm which was 

responsible for submitting the contest form. According to Clean Energy, the second office never 

received the fax in this instance, however, so the operator did not contest 18 of the proposed 

penalties that it states it intended to contest, and instead paid only 12 of the penalties. The 

Secretary states that she does not oppose the reopening of the assessment as to those 18 

penalties.2 In her response in this proceeding, the Secretary also notes that she notified Clean 

Energy by letter dated September 6, 2007, that it was delinquent in paying the assessment at issue 

here. 

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

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

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

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

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

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

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

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

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

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

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

2 This is the second of three proceedings involving the same law firm where a breakdown 

in office procedures has been cited as the reason for contests not being filed. Orders are also 

being issued today in the other two proceedings, Road Fork Development Co.; Docket No. KENT 

2008-512, and Long Fork Coal Co., Docket No. KENT 2008-633. In her letter in response to the 

motion filed in Long Fork, the Secretary urges that counsel take steps to ensure that such 

breakdowns do not continue and that penalty assessments are timely contested. We agree with 

this recommendation. 

30 FMSHRC 225 
Having reviewed Clean Energy's request, in the interests of justice, we remand this 

matter to the Chief Administrative Law Judge for a determination of whether good cause exists 

for Energy's failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

30 FMSHRC 226 
Distribution: 

Sarah Ghiz Korwan, Esq. 

Dinsmore & Shohl, LLP 

P. 0. Box 11887 

900 Lee Street 

Suite 600 

Charleston, WV 25339 

Ramonda C. Lyons, Esq. 

Dinsmore & Shohl, LLP 

P. 0. Box 11887 

900 Lee Street 

Suite 600 

Charleston, WV 25339 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance,· MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 227 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

LONG FORK COAL COMPANY 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 30, 2008 

Docket No. KENT 2008-633 

A.C. No. 15-05375-132553 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners1 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On March 4, 2008, the Commission received from 

Long Fork Coal Company ("Long Fork") a motion by counsel seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

On November 27, 2007, the Department of Labor's Mine Safety and Health 

Administration issued a proposed assessment to Long Fork for three citations that had been 

previously issued to the operator. Long Fork states that, following receipt of the assessment, it 

1 Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A 

new Commissioner possesses legal authority to participate in pending cases, but such 

participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In 

the interest of efficient decision making, Commissioner Cohen has elected not to participate in 

this matter. 

30 FMSHRC 228 
faxed the proposed assessment to the law firm which represented it in proceedings before the 

Commission. The paralegal at the law firm who is responsible for receiving and processing 

documents attempted to scan the assessment form and send it by electronic mail to the attorneys 

who were primarily responsible for handling Long Fork matters. However, because of 

unspecified technical problems, the attorneys never received the email, and no contest of the 

penalty assessment was filed. Long Fork learned of the error when it received an invoice from 

MSHA specifying unpaid assessments. The Secretary states that she does not oppose the 

reopening of the assessment. 2 · 

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

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

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

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

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

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

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

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

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

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

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

2 In the letter in which the Secretary stated that she does not oppose Long Fork's Motion 

to Reopen, she also noted that this is the third proceeding involving the same law firm where a 

breakdown in office procedures has been cited as the reason for contests not being filed. Orders 

are also being issued today in the other two proceedings, Road Fork Development Co., Docket 

No. KENT 2008-512 and Clean Energy Mining Co., Docket No. KENT 2008-538. The 

Secretary urges that counsel take steps to ensure that such breakdowns do not continue and that 

penalty assessments are timely contested. We agree with this recommendation. 

30 FMSHRC 229 
Having reviewed Long Fork's request, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for Long 

Fork's failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

30 FMSHRC 230 
Distribution: 

Ramonda C. Lyons, Esq. 

Dinsmore & Shohl, LLP 

P. 0. Box 11887 

900 Lee Street 

Suite 600 

Charleston, WV 25339 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 231 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April30,2008 

Docket No. WEV A 2008-600 

A.C. No. 46-01318-132649 

CONSOLIDATION COAL COMP ANY 

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners1 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On February 28, 2008, the Commission received from 

Consolidation Coal Company ("Consol") a motion made by counsel to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

On November 27, 2007, the Department of Labor's Mine Safety and Health 

Administration issued Proposed Assessment No. 000132649 to Consol, proposing penalties for 

87 citations and orders that had been issued to the company's Robinson Run No. 95 Mine during 

2007. According to Consol, the proposed assessment was received by the mine's superintendent, 

1 Commissioner Robert F. Cohen, Jr., assumed office after this case had been filed. A 

new Commissioner possesses legal authority to participate in pending cases, but such 

participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 n.2 (June 1994). In 

the interest of efficient decision making, Commissioner Cohen has elected not to participate in 

this matter. 

30 FMSHRC 232 
and the company intended to contest 24 of the proposed penalties. Consol states, however, that 

due to the assessment form being misplaced during a move to new offices at a new portal of the 

mine, the operator never filed the contest form. The Secretary states that she does not oppose 

Consol's request to reopen the penalty assessment as to the 24 proposed penalties. 

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

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

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

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

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

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

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

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

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

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

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

Having reviewed Consol's motion, in the interests of justice, we remand this matter to the 

Chief Administrative Law Judge for a determination of whether good cause exists for Consol's 

failure to timely contest the penalty proposal and whether relief from the final order should be 

granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the 

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

30 FMSHRC 233 
Distribution: 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center 

Suite 1340 

401 Liberty A venue 

Pittsburgh, PA 15222 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

30 FMSHRC 234 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577/FAX 303-844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GORDON SAND COMPANY, 

Respondent 

March 7, 2008 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2006-524-M 

AC. No. 04-01787-090994 

Gordon Sand Company 

Appearances: John D. Pereza, Conference & Litigation Representative, Mine 

Safety & Health Administration, Vacaville, California, for Petitioner. 

Before: Judge Manning 

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

of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Gordon 

Sand Company, 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"). Gordon Sand Company operates a 

construction sand and gravel operation in Santa Barbara County, California. It contested three 

citations issued by the Secretary. An evidentiary hearing was held in Oakland, California. 

The Secretary's representative appeared at the scheduled hearing along with his witness 

but nobody from Gordon Sand Company was present. I called George Gordon ill, the chief 

executive officer of the company, at his office in Hayward, California, and was advised that he 

was not in the office at that time. About ten minutes later, he called me back and advised me that 

he had forgotten about the hearing. I advised him that I would be holding the company in 

default. 

Prior to the hearing, the Secretary agreed to vacate Citation Nos. 6390416 and 6390417. 

(Secretary's Response to Prehearing Order). As a consequence, the scheduled hearing only 

concerned Citation No. 6390415, which alleges a violation of 30 C.F.R. § 56.14107(a). I hereby 

find Gordon Sand Company in DEFAULT with respect to that citation. Citation No. 6390415 is 

affirmed in all respects as is the Secretary's proposed penalty for the citation. (Tr. 4). 

30 FMSHRC 235 
For the reasons set forth above, Citation No. 6390415 is AFFIRMED, and Gordon Sand 

Company is ORDERED TO PAY the Secretary of Labor the sum of $177.00 within 30 days of 

the date of this decision. 

Distribution: 

mg 

Administrative Law Judge 

John D. Pereza, Conference & Litigation Representative, Mine Safety & Health Administration, 

2060 Peabody Road, Suite 610,Vacaville, CA 95687 (Certified Mail) 

George E. Gordon III, Gordon Sand Company, 28310 Industrial Blvd., Suite F, Hayward, CA 

94545 (Certified Mail) 

RWM 

30 FMSHRC 236 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

March 25, 2008 

SECRETARY OF LABOR, CIVIL PENAL TY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MCELROY COAL COMP ANY, 

Respondent 

Docket No. WEVA 2007-132 

A. C. No. 46-01437-99999-01 

McElroy Mine 

DECISION 

Appearances: Judson H.P. Dean, Esq., Office of the Solicitor, 

Before: 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

for the Petitioner; 

R. Henry Moore, Esq., Jackson Kelly PLLC, 

Pittsburgh, Pennsylvania, for the Respondent; 

Judge Feldman 

This civil penalty proceeding concerns a Petition for the Assessment of Civil Penalty filed 

pursuant to section l lO(a) of the Federal Mine Safety and Health Act of 1977 ("Mine Act"), 

30 U.S.C. § 820(a), by the Secretary of Labor against the respondent, McElroy Coal Company 

("McElroy"). The petition seeks to impose a total civil penalty of $27,348.00 for 20 alleged 

violations of mandatory safety standards contained in 30 C.F.R. Parts 70 and 75 of the 

Secretary's regulations governing underground coal mines. 

This matter was heard on October 16, 2007, in Fairmont, West Virginia. The parties' 

post-hearing briefs and replies are of record. At trial, the parties advised that they had reached a 

settlement agreement with respect to all but one of the cited violations that are the subject of this 

proceeding. The record was left open for the parties to submit the terms of their agreement in 

writing. The parties' Motion for Approval of Partial Settlement with respect to 19 citations and 

orders was filed on March 3, 2008. McElroy has agreed to pay a total civil penalty of $12,576.50 

for the 19 settled citations and orders rather than the $20,748.00 civil penalty initially proposed 

by the Secretary. 1 The parties' settlement agreement is discussed below and approved herein. 

1 The proposed $12,576.50 settlement is based on the Corrected Motion to Approve 

Partial Settlement filed by the Secretary on March 6, 2008. 

30 FMSHRC 23 7 
The only order adjudicated is 104(d)(2) Order No. 7149765 for which the Secretary 

proposes a $6,600.00 civil penalty. As 104(d)(2) Order No. 7149765 as well as the Secretary's 

proposed civil penalty shall be affirmed, a total civil penalty of $19,176.50 shall be assessed for 

the 20 cited violative conditions. 

I. Statement of the Case 

At issue is the proposed $6,600.00 civil penalty for 104(d)(2) Order No. 7149765 issued 

on January 11, 2006, for an alleged significant and substantial ("S&S") violation of the 

Secretary's mandatory safety standard in 30 C.F.R. § 75.400.2 This mandatory safety regulation 

requires that coal dust and other combustible material must be cleaned up in a timely manner 

rather than being permitted to accumulate in active workings. The order was issued after 

extensive coal dust accumulations were observed along an active longwall belt. The condition 

was attributed to McElroy' s unwarrantable failure because the accumulations were recorded 

during preshift and onshift examinations for 18 consecutive shifts (five days) without any 

meaningful remedial action. 

McElroy has stipulated to the fact of the section 75.400 violation. (Joint Stip. 7). 

However, McElroy disputes both the S&S characterization of the violation,3 and that the 

violation was unwarrantable.4 Although the parties' disagreement on the exact measurements of 

the accumulations is a matter of degree, the evidence reflects that they were widespread and 

significant in depth. Mc Elroy's contest of the S&S and unwarrantable issues primarily is based 

on its assertion that the cited accumulations were not in contact with any potential ignition source 

(not contacting rollers), and, therefore, the accumulations were not serious in gravity, or in need 

of expeditious removal. 

With respect to the issue of S&S, it is well settled that the seriousness of violations 

should be evaluated in the context of continued mining operations assuming that the cited 

condition will remain unabated. See, e.g., Mid-Continent Resources, 16 FMSHRC 1218, 1221 

(June 1994) (citing US. Steel Mining Co., Inc., 7 FMSHRC at 1125, 1130 (Aug. 1985)). For the 

reasons discussed below, given the migrating nature of coal accumulations, the propagation 

2 McElroy concedes that 104(d)(2) Order No. 7124999 issued on October 26, 2005, is the 

predicate order for 104(d)(2) Order No. 7149765 issued on January 11, 2006, as an intervening 

"clean" inspection had not occurred. (Joint Stip. 8). 

3 Generally speaking, a violation is S&S if it is reasonably likely that the hazard 

contributed to by the violation will result in an accident causing serious injury. Cement Division, 

National Gypsum, 3 FMSHRC 822, 825 (Apr. 1981). 

4 A violation of a mandatory safety standard is unwarrantable when the actions of 

the mine operator that resulted in the violation constitute more than ordinary negligence. 

Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). 

30 FMSHRC 238 
hazard they present, and the ever-present potential ignition source caused by worn rollers, the 

Secretary's S&S designation, and her contention that the violation is attributable to an 

unwarrantable failure, shall be affirmed. Consequently, McElroy has failed to demonstrate an 

adequate basis for disturbing the Secretary's proposed $6,600.00 penalty. 

II. Findines of Fact 

This matter concerns coal accumulations that were observed along the conveyor belt 

for the three-Left, five-South longwall section during a January 11, 2006, inspection at the 

McElroy Mine. At that time, the longwall's production was approximately 10,000 tons of coal 

per shift. {Tr. 386). Extracted coal is transported from the three-Left, five-South longwall face 

on a longwall belt that carries coal from the face to the main belt at the mouth of the section. 

{Tr. 84). The longwall belt comprises approximately 5,000 feet of the approximate 22 miles of 

conveyor belt that is operating at the mine. (Tr. 84-5, 151). The crosscuts along the belt entry 

are approximately 16 feet wide. (Tr. 98). The crosscuts are separated by large and small blocks 

of coal. The large blocks of coal are 275 feet long. The smaller blocks of coal are approximately 

137Yz feet long. {Tr. 103; Gov. Ex. 5A). On January 11, 2006, the longwall face was located 

inby the 36 crosscut. (Gov. Ex. 5A). 

The longwall belt, which is 54 inches wide, is supported by a metal structure that is four 

feet high. {Tr. 84, 397). The entire structure, including the side rails, is approximately 72 inches 

wide. {Tr. 397). The belt and side rails are supported above the ground by metal stands, which 

are located about 10 feet apart. {Tr. 90). There are sets of top rollers and bottom or "idler" 

rollers in each cradle. (Tr. 84). The bottom rollers are approximately 12 to 14 inches above the 

ground and are attached to the belt stands. (Tr. 90, 129-30). The drive is located near the outby 

end of the belt. (Tr. 90; Gov. Ex. 5). Along the belt near the drive, there is a "box check" and a 

separate regulator used to regulate air in the belt entry. (Tr. 88). 

Mine Safety and Health Administration ("MSHA") Inspector Jason Rinehart arrived at 

the McElroy Mine at approximately 7:15 a.m. on January 11, 2006. Prior to going underground, 

Rinehart reviewed the preshift and onshift book for the three-Left, five-South longwall section. 

{Tr. 27). Rinehart noted repeated examination book entries describing the locations 

of numerous accumulations in the belt entry that required cleaning during the period 

beginning with the preshift examination that was completed at 7:00 a.m. for the day shift on 

January 5, 2006, through the preshift examination that was completed at 7:00 a.m. for the 

current January 11, 2006, day shift. The exact dimensions with respect to length and depth 

of the accumulations were not entered by the preshift or onshift examiners. (Gov. Ex. 3). 

Specifically, the relevant McElroy examination book notations reflect: 

Accumulations between the 38 and 31 blocks were reported for 18 consecutive 

shifts (5 days) (accumulations between the 38 and 35 blocks apparently were only 

reported from January 5 through January 9, 2006, because the longwall face had 

30 FMSHRC 239 
retreated from the 38 block to the 35 block during this time). (Tr 33-64, 68-70; 

see Gov. Ex. 3, at 1, 35). 

Accumulations between the 17 and 22 blocks were reported for 18 consecutive 

shifts (5 days) from 7:00 a.m. on January 5, 2006, until the preshift examination at 

7:00 a.m. on January 11, 2006. (Tr 33-64, 68-70; see Gov. Ex. 3, at 1, 35). 

Accumulations between the 9 and 11 blocks were reported for 18 consecutive 

shifts (5 days) from 7:00 a.m. on January 5, 2006, until the preshift examination at 

7:00 a.m. on January 11, 2006. (Tr. 33-64, 73; see Gov. Ex. 3, at 1, 35). 

Accumulations at the "ALC" ("Belt AIL" or "AIL") were reported for 18 

consecutive shifts (5 days) from 7:00 a.m. on January 5, 2006, until the preshift 

examination at 7:00 a.m. on January 11, 2006. (Tr. 33-64; see Gov. Ex. 3, at 1, 

35). 

Accumulations between the 5 block and the airlock were reported for 15 

consecutive shifts (4 days) from 3:00 p.m. on January 6, 2006, until the preshift 

examination at 7:00 a.m. on January 11, 2006. (Tr. 33-64, 72; see Gov. Ex. 3, at 

9, 35) 

After reviewing the findings of the preshift and onshift examiners, Rinehart went 

to the three-Left, five-South section to compare the condition of the belt entry to the notations 

in the examination book. Rinehart was accompanied by McElroy' s safety representative 

Charles Bradley Racer and miners' representative Tom Stem. (Tr. 74). Racer accompanied 

Rinehart for the entire belt inspection. (Tr. 168). Although Rinehart believed that the belt was 

running at the time of inspection, Racer testified the belt was shut down to perform the routine 

maintenance that is required at the beginning of each shift, such as checking pressures on the 

sheer spray arms and drums. (Tr. 92, 319-21). 

Rinehart took measurements of the accumulations along the beltline and announced the 

results of his measurements to Racer and Stem. They did not express any disagreement with 

Rinehart's measurements at that time. (Tr. 118-119). Rinehart stated the accumulations 

consisted of black float coal dust that he described as dry, fine, and powdery. The accumulations 

had not been rock dusted. (Tr. 122-23). Rinehart testified that the accumulations were obvious 

to anyone walking along the conveyor belt, and, that no one was cleaning the accumulations at 

the time of his inspection. (Tr. 123-24). 

30 FMSHRC 240 
Bottom rollers are located approximately 12 to 14 inches above the mine floor. (Tr. 129-

30). Rinehart noted that there were two bottom rollers in contact with accumulations that 

were 14 inches in depth between the 10 and 11 blocks, and that there was one roller in contact 

with accumulations that were 14 inches in depth between the 9 and 10 blocks. (Tr. 128-29; 

Gov. Ex. SA). Although bearings in rollers can wear over time, causing friction-related heat, 

Rinehart did not detect any heat from the three bottom rollers in proximity to the coal dust 

accumulations. (Tr. 130-31 ). 

Rinehart also determined that 12 top rollers located between the 9 to 13 blocks had 

recently been replaced during the afternoon shift on January 6, 2006.5 (Tr. 55-57, Gov. Ex. 3 at 

12). In addition, Rinehart observed two frozen top rollers6 between the 26 and 28 blocks, a bad 

top roller between the 13 and 14 blocks, and a bad bottom roller between the 12 and 13 blocks.7 

(Tr. 107, 129, 133-34). Finally, Rinehart observed that the conveyor belt was cutting into the 

stands in the vicinity of the No. 18 crosscut (No. 18 block). (Tr. 124; Gov. Ex. SA). 

As a result of his review of the examination book and his observations of the conditions 

in the belt entry, Rinehart issued 104(d)(2) Order No. 7149765 at 9:13 a.m. on January 11, 2006, 

citing a violation of the mandatory standard in section 75.400. As previously noted, this safety 

standard requires combustible materials such as coal dust, float coal dust and loose coal to be 

cleaned up to prevent their accumulation in active workings. Order No. 7149765 states: 

An accumulation ofloose coal, coal fines, and float coal dust exists on the 3-Left, 

5-South longwall belt at the following locations: No. 34-33 block loose coal and 

coal fines up to 8 inches deep at various locations; No. 33-32 block loose coal up 

to 5 inches deep at various locations; No. 32-31 block loose coal up to 11 inches 

deep at various locations; No. 30-29 block loose coal up to 7 inches at various 

locations; No. 29-28 block loose coal up to 7 inches deep at various locations; No. 

28-27 block loose coal up to 9 inches deep at various locations; No. 26-25 block 

loose coal 14 feet long 3 7 inches wide and up to 16 inches deep on both sides of 

the belt; No. 9-11 block loose coal 64 inches wide in places and up to 14 inches 

deep. There were two rollers in contact with the accumulations between 10-11 

block and one roller in contact with accumulations between 9-10 block. Also, 

there were dry coal fines and float coal dust extending between No. 5 block and 

5 It is undisputed that top rollers were replaced on January 6, 2006. References in the 

transcript that the top rollers were replaced on January 6, 2005, are erroneous. (Tr. 55-57). 

The error occurred because the examination book entry "Replaced 12 Tops 9-13 Brk" 

erroneously reflects the examination occurred on January 6, 2005, instead of January 6, 2006, 

as the examiner apparently forgot to record the arrival of the new year. (Gov. Ex. 3 at 12). 

6 A "frozen" roller is one that does not spin. (Tr.133). 

7 A "bad" roller is one that has bearings that are beginning to fail. (Tr. 133). 

30 FMSHRC 241 
the box check. The float coal dust extended in the belt regulator. 0.45% methane 

was detected on this belt. The following conditions were listed in the preshift 

examination books for 18 shifts with no corrective action taken: Airlock to 5 wall 

needs cleaned [sic], 17-22 and 31-35 block needs cleaned [sic] and 9-11 block 

spillage. 

(Gov. Ex. 1). Although inadvertently not cited in Order No. 7149765, Rinehart noted 

accumulations at the 19 to 20 block that were 30 feet long and 6 to 8 inches in depth. 

(Tr. 65; Gov. Ex. 2).8 

Rinehart designated the violation as S&S because the frozen top roller, bad bottom roller, 

belt contact with the metal stand, and a potential bearing failure in the rollers contacting the coal 

dust, were all potential sources of heat that could ignite the combustible coal accumulations. 

(Tr. 131-36). Rinehart was also concerned with the propagation hazard of float coal dust that 

could be suspended in air, providing additional fuel in the event of an explosion. (Tr. 137). 

Rinehart attributed the accumulations to an unwarrantable failure because the hazardous 

accumulations were extensive and obvious. Moreover, the accumulations were permitted to 

exist for five days despite being repeatedly noted by examiners as a condition needing corrective 

action. (Tr. 146-47). 

The 104(d)(2) Order No. 7149765 was terminated at 2: 15 p.m. on January 11, 2006, 

five hours after it was issued. It took at least ten miners several hours to remove the cited 

accumulations. (Tr. 140-4l, 252-53; Resp. Reply Br. at 3). 

Ryan Carmen is currently employed by MSHA as an inspector-in-training. 

In January 2006, Carmen was employed as a foreman at the McElroy Mine. At that time, 

Carmen was the foreman for the three-Left, five-South longwall section. (Tr. 203-04, 211-12). 

Carmen testified that the accumulations noted in the examination book from January 5 to 

January 11, 2006, between the 31 to 38 blocks, the 17 to 22 blocks and the 9 to 11 blocks were 

the same accumulations cited by Rinehart in Order No. 7149765. (Tr. 231-32). In fact, Carmen 

personally entered several of the notations concerning the cited accumulations in the examination 

book. (Tr. 210-15). Carmen stated that conditions requiring corrective action were not always 

immediately addressed at the McElroy Mine due to other priorities and personnel shortages. 

(Tr. 245-46). In this regard, Carmen testified that from January 5, 2006, until Rinehart's 

January 11, 2006, inspection, McElroy did not assign any miners to clean the accumulations 

noted by the preshift examiners. (Tr. 246-47). 

8 The testimony concerning Rinehart's observations of the accumulations between blocks 

19 and 20 was allowed as relevant evidence concerning whether the accumulations observed by 

Rinehart were the accumulations noted by examiners from January 5 through January 11, 2006. 

However, any attempt by the Secretary to modify the citation to include the accumulations 

between blocks 19 and 20 was denied. (Tr. 66). 

30 FMSHRC 242 
Rinehart testified that there was an 8 inch hole in the middle of the conveyor belt. 

(Tr. 171-72; Gov. Ex. 2). As the conveyor belt traveled, the hole was a source of spillage 

anywhere along a significant length of the three-Left, five-South beltline. (Tr. 172). Racer 

corroborated Rinehart's testimony concerning the hole in the middle of the belt. Racer estimated 

the size of the hole was approximately 12 inches by 6 inches. (Tr. 335). Racer speculated about 

the path of the spillage after it passed through the hole in the belt. Racer opined: 

Oh, if there's a hole in the belt as its moving, the coal's going to fall through that 

hole. And as it falls through that hole, its going to hit the bottom belt, which is 

traveling in the opposite direction and kick it, or kick it around, or have it hit a 

stand and come off on the side of the belt. 

(Tr. 335). 

Timothy T. Underwood, McElroy' s Assistant Superintendent, similarly opined that 

most of the cited accumulations came from the hole in the belt, stating that "it doesn't take very 

long ... to get an accumulation on the beltline with a hole in it." (Tr. 375, 396). 

After the 104( d) order was issued, Underwood asked Rinehart what action was necessary . 

to restart the conveyor. Underwood stated that Rinehart responded that the accumulations had to 

be cleaned before the order could be terminated. Underwood testified that Rinehart did not tell 

him that any of the accumulations were contacting rollers. (Tr. 367-68). 

Although Racer and Underwood admit the hole in the belt provided the means for coal 

dust to accumulate quickly, McElroy disputes the extent and depth of the accumulations. Racer 

testified that the accumulations were no more than twelve inches deep, and that twelve inch 

depths only existed near the stands supporting the belt structure. Specifically, Racer testified the 

most extensive areas where there was spillage from stand to stand was between the 9 to 11 

blocks, the 25 to 26 blocks and the 31 to 34 blocks. Furthermore, Racer conceded the 

accumulations were as much as twelve inches in depth between the 9 to 11 blocks and between 

the 25 to 26 blocks. (Tr. 327). 

Contrary to Rinehart's testimony that accumulations were situated under the belt in 

proximity to several bottom rollers, Racer stated the accumulations were in narrow bands, no 

more than six inches in width, that were located at the side of the belt, between the waterline and 

belt structure. (Tr. 332-34). In this regard, Racer denies that Rinehart showed him any rollers 

that were contacting coal. (Tr. 324-25). When asked whether Rinehart pointed out any bad 

rollers, or, whether he observed any bad rollers while he accompanied Rinehart during his 

inspection, Racer answered, "Not that I recall." (Tr. 325). Similarly, Underwood testified that 

Rinehart did not tell him that rollers were contacting coal when Rinehart described what he 

observed during his inspection. (Tr. 367-68). 

30 FMSHRC 243 
Ill. Further Findines and Conclusions 

McElroy has stipulated that it violated section 75.400 in that the cited coal dust 

accumulations were permitted to accumulate in active workings rather than being cleaned up in a 

timely manner. (Joint Stip. 7). However, McElroy disputes the S&S designation and the 

Secretary's claim that the accumulations were attributable to its unwarrantable failure. 

As a threshold matter, it is significant to note that S&S and unwarrantable issues are 

mutually independent. Although the degree of danger posed by a violation is a relevant 

consideration in determining whether an unwarrantable failure has occurred, a violation does 

not have to be S&S to support an unwarrantable failure. Youghiogheny & Ohio Coal Company, 

10 FMSHRC 603, 609 (May 1988) (an S&S finding is not a prerequisite for issuance of a 

104(d)(l) order). 

a. Significant and Substantial Issue 

As a general proposition, a violation is properly designated as S&S in nature if, based on 

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

contributed to by the violation will result in an injury or an illness of a reasonably serious nature. 

Cement Division, National Gypsum, 3 FMSHRC at 825. mMathies Coal Co., 6 FMSHRC 1 

(January 1984), the Commission explained: 

fu 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 [by the violation) will 

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

be of a reasonably serious nature. 

6 FMSHRC at 3-4; see also Austin Power Inc. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988), 

afj'g 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria). 

fu U.S. Steel Mining Co., Inc., 7 FMSHRC at 1129, the Commission explained its 

Mathies criteria as follows: 

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." US. Steel Mining Co., Inc., 

6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance 

with the language of section 104( d)(l ), it is the contribution of a violation to the 

cause and effect of a hazard that must be significant and substantial. US. Steel 

Mining Company Co., Inc., 6 FMSHRC 1866, 1868 (August 1984) (emphasis in 

original). 

30 FMSHRC 244 
The Commission subsequently reasserted its prior determinations that as part of any S&S 

finding, the Secretary must prove the reasonable likelihood of an injury occurring as a result of 

the hazard contributed to by the cited violative condition or practice. Peabody Coal Company, 

17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508 (April 1996). 

Resolution of whether a particular violation of a mandatory standard is S&S in nature 

must be made assuming continued normal mining operations. U.S. Steel Mining, 7 FMSHRC 

at 1130. Thus, consideration must be given to 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); 

Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986). 

Viewing the evidence in a light most favorable to McElroy, Racer's description of 

the subject accumulations, from stand to stand between several blocks, as much as 12 inches 

in depth, clearly supports the Secretary's assertion that the accumulations were extensive. 

However, the thrust ofMcElroy's opposition to the S&S designation appears to be its assertion 

that the cited accumulations were alongside the beltline rather than under the belt in proximity to 

bottom rollers. 

Assuming, arguendo, that the accumulations were not contacting any rollers, coal dust 

accumulations, including float dust and coal .fines, are migratory by nature. Thus, there is little 

evidentiary significance to McElroy's claim that, at the time of Rinehart's inspection, the 

prohibited combustible accumulations were located alongside the belt next to the rollers rather 

than under the belt in contact with bottom rollers. I am unaware of any Commission precedent 

that establishes contact with belt rollers as a prerequisite to an S&S determination for proscribed 

accumulations in a belt entry. Moreover, such a conclusion would ignore the significant 

propagation hazard posed by the extensive accumulations that are present in this case,9 

Turning to a more traditional discussion of the S&S issue, with regard to the first element 

of Mathies -- violation of a mandatory standard -- McElroy has stipulated that the accumulations 

cited in 104(d)(2) Order No. 7149765 constitute impermissible combustible accumulations 

prohibited by section 75.400. (Joint Stip. 7). 

With respect to the second element of Mathies, i.e., a discrete safety hazard contributed 

to by the violation, longstanding Commission precedent has recognized that combustible 

accumulations create significant explosion and propagation hazards. Old Ben Coal Co., 

1 FMSHRC 1954, 1957 (Dec. 1979) (ignitions and explosions are major causes of death and 

injury to miners); Utah Power & Light Co., 12 FMSHRC 965, 970 (May 1990) (recognizing 

9 "Propagation" occurs when coal dust provides the fuel that transmits "the flame of an 

explosion ... over considerable areas of a mine in such manner as might result in loss of life of 

workers in a mine." See Am. Geological Inst., Dictionary of Mining, Mineral, and Related 

Terms 429 (2nd ed. 1997). 

30 FMSHRC 245 
Congressional concern regarding loose coal propagation and explosion hazards); Enlow Fork 

Mining Co., 19 FMSHRC 5, 14 (Jan. 1997) (combustible accumulations are hazardous because, 

when placed in suspension, they will propagate an explosion). As coal dust is combustible, if 

combustion were to occur, i.e., fire or explosion, there obviously is a reasonable likelihood that 

miners will be exposed to serious injury or death. Thus, the fourth element of Mathies is also 

satisfied -- a reasonable likelihood of serious injury if the hazard posed by the violation results in 

a fire or contributes to an explosion. 

The remaining element of Mathies requires the Secretary to demonstrate that it is 

reasonably likely that the combustible accumulations violation will result in an event -- a fire or 

explosion -- that is reasonably likely to result in serious or fatal injury. Thus, it is the likelihood 

of a fire or explosion that is the dispositive question in resolving the S&S issue. 

Although I have concluded that contact with conveyor rollers is not necessary to support 

an S&S designation, on balance, the evidence supports Rinehart's testimony that two bottom 

rollers were contacting accumulations between the 10 and 11 blocks, and that one roller was 

contacting accumulations between the 9 and 10 blocks. Rinehart's recollection is supported by 

his contemporaneous field notes. (Gov. Ex. 2, at 5). In addition, Rinehart's testimony, also 

supported by his notes, that there was a bad bottom roller between the 12 and 13 blocks, has not 

adequately been rebutted. Id. I reach this conclusion because Racer's testimony that he did not 

recall whether Rinehart pointed out any bad rollers, or, whether he observed any bad rollers when 

he accompanied Rinehart, is unconvincing. (Tr. 325). Underwood's testimony that Rinehart did 

not tell him that accumulations were contacting bottom rollers when they discussed abatement of 

the 104( d) order is entitled to little weight, as Underwood, unlike Racer, lacked personal 

knowledge of the cited conditions because he was not present during the inspection. 

In the final analysis, it is undisputed that rollers are a potential ignition source by virtue of 

:friction caused by the deterioration of their bearings. In fact, McElroy had replaced numerous 

top rollers several days before Rinehart's inspection. Moreover, Rinehart's observation of the 

conveyor belt cutting into the stands in the vicinity of the 18 block is evidence of an additional 

potential ignition source. (Gov. Ex. 2 at 4). 

When viewed in the context of continuing mining operations, there are sufficient 

potential sources of ignition from malfunctioning rollers and belt contact with the metal frame 

that are in proximity to combustible accumulations to warrant the conclusion that a fire or 

explosion is reasonably likely to satisfy the third element of Mathies. This conclusion is further 

supported by the propagation hazard posed by this combustible material that can easily be put in 

suspension by moving belts and rollers. See Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988) 

(finding that combustible fuel, capable of suspension, in the presence of ignition sources 

constitutes a "confluence of factors" necessary to support an S&S violation). 

30 FMSHRC 246 
Notwithstanding the ignition hazard posed by rollers, McElroy attempts to diminish 

the fire and explosion threat by relying on its carbon monoxide ("CO") monitoring system. 

Carbon monoxide is a by-product of combustion. CO sensors are designed to detect carbon 

monoxide at very low levels before flames are present. In so doing, McElroy relies on an early 

detection system to warn miners, and to allow it to quickly extinguish fires, to support its 

assertion that a significant fire or explosion is not reasonably likely. 

McElroy' s reliance on its early detection system must be rejected. As a general 

proposition, detection systems, such as methane monitors, do not diminish the seriousness of the 

violation of other mandatory safety standards, such as the failure to ensure that electric face 

equipment is permissible. 30 C.F.R. § 75.500. In fact, in Buck Creek Coal, Inc. v. FMSHRC, 52 

F.3d 133, 136 (7th Cir. 1995), the Court, in addressing the S&S issue, rejected the mine 

operator's reliance on fire suppression equipment, such as CO monitors and water sprays, to 

mitigate an accumulation hazard. The Court stated the presence of such safety measures 

"does not mean that fires do not pose a serious safety risk to miners." Id. The Court further 

noted the operator's position "defies common sense" because such "precautions are presumably 

in place ... precisely because of the significant dangers associated with coal mine fires." 

Id.; see also AMAX Coal Company, 19 FMSHRC 846, 850(May1997) (holding that the 

presence of fire detection equipment and fire fighting equipment does not negate the serious 

safety risk posed by fires). 

Finally, McElroy relies on an MSHA report concerning underground belt entry fires to 

support its contention that serious injury is not a likely consequence of a belt fire. 10 MSHA, 

Reducing Belt Entry Fires in Underground Coal Mines, (2007) (Resp. Ex. 53). Specifically, 

the report notes that there have been no fatalities or reportable lost time injuries as a result of 

the 63 reportable belt entry fires that occurred in the 25 year period from 1980 to 2005. (Id. at 6). 

While this MSHA report concluded there had been no reportable lost time injuries as a 

result of belt fires through 2005, it cannot be seriously contended that the report supports the 

proposition that serious injury or death is not a reasonably likely result of a fire in an 

underground mine. In fact, the Aracoma ROI tragically dispels any such notion. The Aracoma 

disaster involved a longwall belt fire that caused the death of two miners. The fire started as a 

10 This "belt entry fire report" was not provided by the respondent to the Secretary's 

counsel prior to the hearing. Nor did the respondent proffer any testimony concerning the 

report's contents. The record was left open to provide the Secretary an opportunity to respond to 

the report, and to take additional testimony if necessary. In response to MSHA's "belt entry fire 

report," on November 19, 2007, the Secretary filed the MSHA Report of Investigation of a 

January 19, 2006, fatal underground coal mine fire at the Aracoma Alma Mine #1. MSHA, 

Report of Investigation of the January 19, 2006, Fatal Underground Coal Mine Fire at the 

Aracoma Alma Mine #I (2007) ("Aracoma ROf'). The record with respect to the MSHA reports 

was closed after the parties elected to address the MSHA reports in their briefs rather than 

provide additional testimony or documentation. 

30 FMSHRC 24 7 
result of frictional heating caused by the misalignment of the longwall belt and the belt of the 

headgate take-up storage unit. (Aracoma ROI at 2). The fire ignited accumulations which 

increased the intensity and extent of the mine fire. Id. 

McElroy asserts that the Secretary's reliance on the Aracoma fire is misplaced because, 

in Aracoma, the belt fire originated at the headgate take-up drive rather than at a belt entry 

conveyor. (Resp. Br. at 14). The original situs of a fire is little solace to a burn victim. 

Rather, the risk of injury or death is determined by the intensity of a fire or explosion -- not the 

location of the initial ignition. McElroy has proffered a distinction without a difference that must 

be rejected. 

In addition, McElroy seeks to distance itself from the Aracoma fire because the fatalities 

were attributable "to a host of conditions'' including noncompliance with ventilation 

requirements and inadequate escapeways. (Id. at 14-15). This distinction is also unavailing. 

The exercise of precaution, or the lack thereof, does not affect the S&S nature of a violation. 

Eagle Nest, Inc., 14 FMSHRC 1119, 1123 (July 1992) (an S&S violation continues to exist 

"regardless of whether caution is exercised"). 

Finally, the Aracoma disaster notwithstanding, the Commission previously has rejected 

the identical argument that a section 75.400 violation due to accumulations in belt entries is not 

S&S because very few belt fires have resulted in injuries. AMAX Coal Company, 19 FMSHRC 

at 849. The Commission determined that the fact that injuries have been avoided in the past in 

connection with a particular violation is fortuitous, and it is not determinative of an S&S finding. 

Id. (citations omitted). 

In sum, it is reasonably likely that the continued presence of this uncorrected combustible 

material violation in proximity to potential ignition sources during continuing mining operations 

will result in, or contribute to, a fire or explosion event that will cause serious or fatal injuries. 

Consequently, the evidence reflects this violation of section 75 .400 is properly designated as 

significant and substantial in nature. 

b. Unwarrantable Failure Issue 

The elements of unwarrantable conduct are well settled. The Commission has 

determined that unwarrantable failure is aggravated conduct constituting more than ordinary 

negligence. Emery Mining, 9 FMSHRC at 2001. Unwarrantable failure is characterized by such 

conduct as "reckless disregard," "intentional misconduct," "indifference," or a "serious lack of 

reasonable care." Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-194 

(Feb. 1991); see also Buck Creek Coal, 52 F.3d at 135-36 (approving the Commission's 

unwarrantable failure test). 

30 FMSHRC 248 
The Commission examines various factors in determining whether a violation is 

unwarrantable, including the magnitude of a violative condition, the length of time that it has 

existed, whether the violation is obvious, whether the violation poses a high degree of danger, 

whether the operator has been placed on notice that greater efforts are necessary for compliance, 

and the operator's compliance efforts made prior to the issuance of the citation or order. 

Enlow Fork Mining Co., 19 FMSHRC at 11-12, 17; Mullins & Sons Coal Co., 16 FMSHRC 

192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (August 1992); 

Quin/and Coals, Inc., IO FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 

1603 (July 1984). Repeated similar violations may be relevant to an unwarrantable failure 

determination to the extent that they serve to put an operator on notice that greater efforts 

are necessary for compliance with a standard. Peabody, 14 FMSHRC at 1263-64. 

Here, McElroy permitted combustible material to accumulate over a considerable 

period of time. The Commission, as well as Congress, has recognized that accumulations of 

combustible materials constitute hazardous conditions, as any combustible material when placed 

in suspension will enter into and propagate an explosion. Enlow Fork, 19 FMSHRC at 14, citing 

S. Rep. No. 411, 91st Cong., 1st, Sess. 65 (1969), reprinted in Senate Subcommittee on Labor, 

Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I Legislative History of the 

Federal Coal Mine Health and Safety Act of 1969, at 191 (1975). 

As previously discussed, the accumulations were numerous and extensive in size and 

depth. As an example of one of the many accumulations cited in 104(d)(2) Order No. 7149765, 

accumulations that were located on both sides of the belt between the 25 and 26 blocks were 

cited that were 14 feet long, 3 7 inches wide, and up to 16 inches in depth. These accumulations 

alone are of significant magnitude to warrant a finding that they were extensive. In this regard, 

even McElroy concedes portions of the cited accumulations were as much as 12 inches deep. 

Finally, Carmen recalled it took as many as 20 miners four hours to remove the cited 

accumulations. (Tr. 252-53). Even McElroy acknowledges the cleanup took approximately ten 

miners three hours, from after 10: 00 a.m. until 1 :20 p.m., to complete. (Resp. Reply Br. at 3). 

Consequently, the evidence clearly reflects the cited accumulations were extensive. 

That the cited accumulations were readily apparent is evidenced by the repeated entries 

by preshift and onshift examiners calling for corrective cleanup action during a five day period 

encompassing 18 shifts beginning on January 5, 2006. The preshift examination "is of 

fundamental importance in assuring a safe working environment underground." Enlow Fork, 

19 FMSHRC at 15 (quoting Buck Creek Coal Co., 17 FMSHRC 8, 15 (Jan. 1995)). Thus, 

a mine operator is required to perform preshift examinations to identify hazardous conditions. 

Enlow Fork, 19 FMSHRC at 14 (citing 30 C.F.R. § 75.360(b)). Yet, Carmen testified the 

preshift examiners' repeated requests for corrective action went unheeded. (Tr. 246-47). 

30 FMSHRC 249 
McElroy suggests there is insufficient evidence that the accumulations recorded over 

these 18 shifts are the same accumulations observed by Rinehart on January 11, 2006, because, 

although the examination book entries describe the accumulations by location, they do not 

contain the dimensions of the accumulations. The Commission has held that the fact that a 

violative condition was not noted in a preshift examination is not evidence that the violation did 

not exist, or that it was of short duration. Peabody, 14 FMSHRC at 1262. Rather, the fact that 

an examiner failed to record an accumulation does not bar an unwarrantable failure finding. Id. 

So too, McElroy's inadequate description of the accumulations in its examination book does not 

give rise to a claim that there is insufficient evidence that the accumulations observed by 

Rinehart, at the identical locations noted during preshift examinations, are the same 

accumulations recorded by the examiners. 

With respect to whether McElroy's conduct was so egregious as to be unwarrantable, it is 

important to consider the underlying facts surrounding the violation. The accumulations existed 

for as long as 18 shifts. McElroy has conceded that a hole in the belt was a significant, if not 

primary, source of the violative accumulations. (Tr. 375). Consequently, it is reasonable to 

conclude that the hole in the belt also existed for at least 18 shifts. Mid-Continent Res., Inc., 

6 FMSHRC 1132, 1138 (May 1984) (reasonable inferences are permissible ifthere is a logical 

and rational connection between the evidentiary facts and the ultimate fact inferred). 

It is axiomatic that "[t]he risk to be perceived defines the duty to be owed." Palsgraf v. 

Long Island R.R., 248 N.Y. 339 (1928). A hole in the middle of a conveyor belt defeats the 

purpose. As Underwood admitted, "it doesn't take very long ... to get an accumulation 

on the beltline with a hole in it." (Tr. 375). Given the repeated notations of significant 

accumulations along the beltline, McElroy knew, or should have known, of the hole's existence. 

Yet it continued to convey coal on the belt despite this source of significant combustible 

accumulations. 11 Thus, the fact that the accumulations were caused by a hole in the conveyer belt 

is an aggravating circumstance. Consequently, McElroy's continued operation of the defective 

belt constitutes more than ordinary negligence. 

In sum, the evidence unequivocally establishes the cited accumulations are attributable to 

at least a high degree of negligence. The Court has concluded that extensive accumulations that 

were present at least one shift and not removed after one preshift examination provided an 

adequate basis to establish an unwarrantable failure. Buck Creek, 52 F.3d at 136. Here, 

McElroy' s nonfeasance was far greater than the unwarrantable conduct in Buck Creek. The 

obvious and extensive accumulations were of five days duration, and known to McElroy, as 

11 I am cognizant that the 6 by 12 inch hole in the belt described by Racer must be viewed 

in the context of the approximate 5,000 feet length of the longwall belt. (Tr. 335). However, 

the documented extensive accumulations during a period of 18 shifts should have heightened 

McElroy's awareness of a potential defect in the beltline as a source of the accumulations. 

The hole should have been discovered when the belt was de-energized during routine belt 

maintenance performed at the beginning of each shift. (Tr. 319-21 ). 

30 FMSHRC 250 
shown by the repeated entries in its preshift examination book. The accumulations were 

dangerous, as they posed a serious fire or explosion hazard. Enlow Fork, 19 FMSHRC at 14; 

see also Black Diamond Coal Mining Co., 7 FMSHRC 1117,1121 (Aug. 1985) (discussing the 

combustibility of coal, and noting that "ignitions and explosions are major causes of death and 

injury to miners"). McElroy was on notice that greater cleanup efforts were required by virtue of 

the fact that it had been cited for245 section 75.400 violations during the two year period 

preceding the issuance of the subject 104(d)(2) order. (Tr. 148-49). Finally, McElroy made no 

effort to remedy the violative accumulations prior to Rinehart's inspection. See San Juan Coal 

Co., 29 FMSHRC 125, 134-35 (Mar. 2007) (noting that "an operator's failure to clean up 

accumulations at the time of inspection ... may support an unwarrantable failure finding"). 

In short, all of the necessary elements are present to support the conclusion that the cited 

accumulations are attributable to McElroy's unwarrantable failure. 

c. Civil Penalty 

The statutory civil penalty criteria are set forth in section l lO(i) of the Act, 30 U.S.C. 

§ 820(i). In determining the appropriate civil penalty to be assessed, section l lO(i) provides, 

in pertinent part: 

the Commission shall consider the operator's history of previous violations, the 

appropriateness of such penalty to the size of the business of the operator charged, 

whether the operator was negligent, the effect on the operator's ability to continue 

in business, the gravity of the violation, and the demonstrated good faith of the 

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

violation. 

McElroy is a large mine operator that is subject to the jurisdiction of the Mine Act. The 

proposed penalty will not affect McElroy' s ongoing business operations and Mc Elroy promptly 

abated the cited violation after the subject 104( d) withdrawal order was issued. While the history 

of245 section 75.400 violations in the two year period preceding this violation should be viewed 

in the context of the 22 miles ofbeltline in the McElroy Mine, such a history cannot be viewed as 

a mitigating factor. 

With respect to negligence, I have given McElroy the benefit of the doubt that its failure 

to address the corrective action repeatedly requested by its preshift examiners evidenced only a 

high degree of negligence, rather than a reckless or conscious disregard. I reach this conclusion 

because of the absence of defective rollers in close proximity to the cited coal accumulations. 

Finally, as previously discussed, extensive combustible accumulations along a beltline is a 

violation that is serious in gravity. Consequently, there is no basis for disturbing the civil penalty 

initially proposed by the Secretary. Accordingly, consistent with the statutory penalty criteria, 

a civil penalty of $6,600.00 shall be assessed for 104( d)(2) Order No. 7149765. 

30 FMSHRC 251 
d. Settlement Terms 

As noted, the Secretary has filed a motion to approve a settlement agreement with 

respect to the 19 remaining citations and orders in this proceeding. A reduction in civil penalty 

for these 19 cited violations, from $20,748.00 to $12,576.50, is proposed. The settlement terms 

include deleting the S&S designation from Citation Nos. 7135325, 7135329, 7135696, 

7135331, 7135697, 7135703 and 7135706, and vacating Citation Nos. 7135695 and 7148008. 

The parties also have agreed to modify Citation No. 7135959 by deleting the S&S designation, 

and by amending the citation to reflect that the violated mandatory standard was 30 C.F.R. 

§ 75. 517 rather than 30 C.F.R. § 75. 604(b). 

I have considered the representations and documentation submitted in support of the 

Secretary's motion and I conclude that the proffered settlement is appropriate under the criteria 

set forth in Section 1 lO(i) of the Act. Accordingly, the parties' settlement terms shall be 

approved. 

ORDER 

Consistent with this Decision, IT IS ORDERED that 104(d)(2) Order No. 7149765 

IS AFFIRMED. 

IT IS FURTHER ORDERED that McElroy Coal Company shall pay a civil penalty of 

$6,600.00 in satisfaction of 104(d)(2) Order No. 7149765. 

Consistent with the parties' settlement terms, IT IS FURTHER ORDERED that 

McElroy Coal Company shall pay a civil penalty of$12,576.50 for the remaining 19 citations 

and orders in issue in this proceeding. 

Consistent with this decision and the parties' settlement terms, IT IS ORDERED 

that McElroy Coal Company shall, within 30 days of the date of this decision, pay a 

total civil penalty of $19,176.50 in satisfaction of the 20 citations and orders that are the 

subject of this matter. Upon receipt of timely payment, the civil penalty proceeding 

in WEVA 2007-132 IS DISMISSED. 

Jerold Feldman 

Administrative Law Judge 

30 FMSHRC 252 
Distribution: 

Judson H.P. Dean, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630 East, 

The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106-3306 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 

401 Liberty Avenue, Pittsburgh, PA 15222 

/rs 

30·FMSHRC 253 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NELSON QUARRIES, INC., 

Respondent 

DENVER, CO 80204-3582 

303-844-3577 /FAX 303-844-5268 

April 7, 2008 

30 FMSHRC 254 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 2006-178-M 

A.C. No. 14-01477-87956 

Docket No. CENT 2006-202-M 

A.C. No. 14-01477-80283 

Plant 1 

Docket No. CENT 2006-203-M 

A.C. No. 14-01478-77337 

Docket No. CENT 2006-204-M 

A.C. No. 14-01478-82614 

Docket No. CENT 2006-228-M 

A.C. No. 14-01478-87955 

Plant 2 

Docket No. CENT 2006-207-M 

A.C. No. 14-01277-74668 

Docket No. CENT 2006-208-M 

A.C. No. 14-01277-82615 

Docket No. CENT 2006-229-M 

A.C. No. 14-01277-87965 

Docket No. CENT 2006-231-M 

A.C. No. 14-01277-93224 

Plant 3 

Docket No. CENT 2006-151-M 

A.C. No. 14-01597-85132 

Docket No. CENT 2006-206-M 

A.C. No. 14-10597-80316 
Appearances: 

Before: 

DECISION 

Docket No. CENT 2006-230-M 

A.C. No. 14-01597-90759 

Docket No. CENT 2006-233-M 

A.C. No. 14-01597-93238 

Docket No. CENT 2006-237-M 

A.C. No. 14-01597-77364-02 

Plant 4 

Docket No. CENT 2006-200-M 

A.C. No. 14-01635-74774 

Docket No. CENT 2006-201-M 

A.C. No. 14-01635-80401 

Plant 5 

Jennifer Casey, Esq, and Kristi Henes, Esq., Office of the Solicitor, U.S. 

Department of Labor, Denver, Colorado, and Ronald Pennington, 

Conference & Litigation Representative, Mine Safety and Health 

Administration, Denver, Colorado, for Petitioner; 

Paul M. Nelson, Nelson Quarries Inc., Gas, Kansas, for Respondent. 

Judge Manning 

These cases are before me on 16 petitions for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"), 

against Nelson Quarries, Inc., pursuant to sections 105 and 110 of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The cases involve 100 citations 

and orders issued by MSHA under sections 104(a) and 104(d)(l) of the Mine Act at five plants 

operated by Nelson Quarries. The parties presented testimony and documentary evidence at the 

hearing held in Topeka, Kansas, and filed post-hearing briefs on a few of the citations. 

At all pertinent times, Nelson Quarries operated five quarries in Allen and Crawford 

Counties, Kansas. The quarries mine limestone and then crush and screen the material for sale. 

The operations are portable. Three of these facilities operate intermittently and the other two 

operate full-time. The oldest quarry has been operating since 1985 and the newest quarry was 

opened in 2004. Most of the citations at issue in these cases were issued after a hazard complaint 

30 FMSHRC 255 
was filed by a former employee of Nelson Quarries. The complaint listed 14 alleged hazards. 

Some of the hazards complained of were general, such as the ones that stated ''Nelson Quarries' 

properties are unsafe to everyone who works in them" and "electricity is bad [at] all plants." (Tr. 

35-36; Exs. G-1, G-11 ). Others were more specific, such as one that stated that "explosives are 

left unguarded and hid around the plant to save time and money." Id. This complaint was with 

respect to Plant 4. As a result of this complaint, inspectors from MSHA's Topeka, Kansas, office 

conducted a comprehensive inspection of all five quarries. Because MSHA's Topeka office did 

not have an electrical inspector, an electrical inspector was brought in from Salt Lake City, Utah, 

to inspect the electrical systems at all five plants. (Tr. 138). MSHA determined that about half of 

the hazards complained of had some validity. Nelson Quarries received more citations during 

these inspections than it had ever received. All of the citations discussed below were issued 

under section 104(a) of the Mine Act unless otherwise noted. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

A. Discussion of General Issues Raised by Nelson Quarries 

Nelson Quarries raised a number of general issues that are applicable to all or most of the 

citations at issue. First, it argues that the Secretary failed to demonstrate that accidents could 

result from many of the cited conditions. For example, it contends that an injury could only 

result from an employee's intentional misconduct in many of the conditions cited under the 

Secretary's guarding standard. It maintains that the Secretary failed to establish any likelihood of 

an injury to employees as a result of the cited conditions. 

The Federal Mine Safety and Health Review Commission and the courts have uniformly 

held that mine operators are strictly liable for violations of safety and health standards. See, e.g. 

Asarco v. FMSHRC, 868 F .2d 1195 (10th Cir. 1989). "[W]hen a violation of a mandatory safety 

standard occurs in a mine, the operator is automatically assessed a civil penalty." Id. at 1197. In 

addition, the Secretary is not required to prove that a violation creates a safety hazard, unless the 

safety standard so provides. 

The [Mine Act] imposes no general requirement that a violation of 

MSHA regulations be found to create a safety hazard in order for a 

valid citation to issue. If conditions existed which violated the 

regulations, citations [are] proper. 

Allied Products, Inc., 666 F.2d 890, 892-93 (51

h Cir. 1982)(footnote omitted). The negligence of 

the operator and the degree of the hazard created by the violation are taken into consideration in 

assessing a civil penalty under section 11 O(i). 30 U.S.C. § 820(i). Thus, a violation is found and 

a penalty is assessed even if the chance of an injury is not very great. The risk of injury and the 

appropriate penalty for each citation is discussed below. 

30 FMSHRC 256 
The Commission interprets safety standards to take into consideration "ordinary human 

carelessness." Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (September 1984). In that 

case, the Commission held that the guarding standard must be interpreted to consider whether 

there is a "reasonable possibility of contact and injury, including contact stemming from 

inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness." Id. 

Human behavior can be erratic and unpredictable. For example, someone might attempt to 

perform minor maintenance or cleaning near an unguarded tail pulley without first shutting it 

down. In such an instance, the employee's clothing could become entangled in the moving parts 

and a serious injury could result. Guards are designed to prevent just such an accident. The fact 

that no employee has ever been injured by an unguarded tail pulley at Nelson Quarries' 

operations is not a defense because there is a history of such injuries at plants throughout the 

United States. "Even a skilled employee may suffer a lapse of attentiveness, either from fatigue 

or environmental distractions .... " Great Western Electric Co., 5 FMSHRC 840, 842 (May 

1983). For example, fatal accidents have occurred at small operations as a result of inadequately 

guarded tail pulleys. See Darwin Stratton & Son, Inc., 22 FMSHRC 1265 (Oct. 2000) (ALJ). 

Nelson Quarries also contends that many of the conditions cited by the MSHA inspectors 

existed during previous MSHA inspections. It states that MSHA did not issue citations for these 

conditions until the present inspections when the company came under tougher scrutiny, 

especially with respect to the guarding citations that were issued. Thus, it contends that it did not 

receive fair notice ofMSHA's new interpretation of the safety standard. 

The Secretary must provide fair notice of the requirements of broadly written safety 

standards. Such standards are "simple and brief in order to be broadly adaptable to myriad 

circumstances." Kerr-McGee Corp., 3 FMSHRC 2496, 2497(November1981); Alabama ByProducts Corp., 4 FMSHRC 2128, 2130 (December 1992). Such broadly written standards must 

afford notice of what is required or proscribed. US. Steel Corp., 5 FMSHRC 3, 4 (January 

1983). In "order to afford adequate notice and pass constitutional muster, a mandatory safety 

standard cannot be 'so incomplete, vague, indefinite, or uncertain that [persons] of common 

intelligence must necessarily guess at its meaning and differ as to its application' "Ideal Cement 

Co., 12 FMSHRC 2409, 2416 (November 1990)(citation omitted). A standard must "give a 

person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he 

may act accordingly." Lanham Coal Co., 13 FMSHRC 1341, 1343 (September 1991). 

When faced with a challenge that a safety standard failed to 

provide adequate notice of prohibited or required conduct, the 

Commission has applied an objective standard, i.e., the reasonably 

prudent person test. The Commission recently summarized this 

test as "whether a reasonably prudent person familiar with the 

mining industry and the protective purposes of the standard would 

have recognized the specific prohibition or requirement of the 

standard." 

30 FMSHRC 257 
Id. (citations omitted). To put it another way, a safety standard cannot be construed to mean 

what the Secretary intended but did not adequately express. "The Secretary, as enforcer of the 

Act, has the responsibility to state with ascertainable certainty what is meant by the standard he 

has promulgated." Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (51

h Cir. 1976). I discuss 

the application of this "fair notice" issue to particular citations in more detail below. 

Finally, Nelson Quarries contends that the individual at each quarry who functioned as a 

lead man was not an agent of the company despite the fact that at the time of the subject 

inspections each of these individuals had the title "foreman." It maintains that these employees 

were rank and file miners who were only given a few ministerial functions. 

As a general matter, a mine operator can be held liable for the acts ofits agents. An agent 

is defined at section 3(e) of the Mine Act as "any person charged with responsibility for the 

operation of all or part of a ... mine or the supervision of miners in a ... mine." The 

Commission has held that the negligence of an agent of a mine operator must be considered 

when determining the operator's negligence in assessing a civil penalty under section 11 O(i) of 

the Mine Act and when evaluating an unwarrantable failure allegation. Southern Ohio Coal Co., 

4 FMSHRC 1459, 1463-64 (Aug. 1982); Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 

194-97 (Feb. 1991). 

When deciding whether a miner is an agent of an operator, 

the Commission has focused on the miner's function and not his 

job title. It has examined whether the miner's function involved 

responsibilities normally delegated to management personnel and 

whether his responsibilities were crucial to the mine's operation. It 

has also considered whether the miner exercised managerial 

responsibilities at the time of his negligent conduct. 

Martin Marietta Aggregates, 22 FMSHRC 633, 637 (May 2000) (citations omitted). The 

conduct of a rank-and-file miner, "may not, absent agency, be imputed to the operator." Whayne 

Supply Co., 19 FMSHRC 447, 454 (Mar. 1997) (emphasis in original). I discuss the application 

of these agency issues to particular citations in more detail below. 

B. CENT 2006-151-M, Plant 4. 

1. On November 15, 2005, Inspector Dustan Crelly issued Citation No. 6291250 under 

section 104(d)(l) of the Mine Act alleging a violation of section 56.6130(a). (Ex. G-13). The 

citation alleges that two partial rolls of primer (shock tube) were stored in the parts trailer. The 

citation states that the "rolls of explosive material were under the shelves" in the trailer. The 

citation also states that Foreman Gene Andres told the inspector that this material had been in the 

trailer since at least June 2005. Inspector Crelly determined that an injury was reasonably likely 

and that any injury would likely be fatal. He determined that the violation was significant and 

substantial ("S&S") and that the negligence was high. The safety standard provides that 

30 FMSHRC 258 
"[ d]etonators and explosives shall be kept in magazines." The Secretary proposes a penalty of 

$1,000.00 for this citation. 

Inspector Crelly testified that the legal identity report for Plant 4 lists Gene Andres as the 

foreman. (Tr. 185; Ex. G-10). Mr. Andres also confirmed this fact during the inspection. (Tr. 

189-90). Inspector Crelly was looking for improperly stored explosives because of the 

allegations in the hazard complaint. (Tr. 190). Shock tube is a low explosive that is used as the 

lead line to detonate high explosives. (Tr. 191). The shock tube was an explosive and it was not 

stored in a magazine. The inspector testified that Mr. Andres told him that he knew that the 

shock tube was being stored in the parts trailer. (Tr. 194, 216). Inspector Crelly determined that 

the citation was S&S because shock tube is classified as an explosive, it was not stored in an 

isolated area, and there were cigarette butts in and around the trailer. (Tr. 198-99). The shock 

tube was not in the original manufacturer's packaging or any other container. As a consequence, 

it could be contaminated by gr1t and sand, which would render it more sensitive to detonation. 

(Tr. 200). If something were to fall off a shelf and strike the shock tube, it could easily detonate. 

Miners enter the trailer every day. 

Inspector Crelly determined that the violation was the result of the operator's 

unwarrantable failure to comply with the safety standard. He based this determination on the fact 

that Foreman Andres knew that the shock tube was present and he did not take any action to 

remove it from the parts trailer. (Tr. 202). The shock tube was in plain view. The condition was 

abated when the shock tube was moved to the magazine. (Tr. 203). 

Thomas E. Lobb, a physical scientist with MSHA in Triadelphia, West Virginia, testified 

on behalf of the Secretary by telephone. He conducts investigations into accidents that involves 

explosives. (Tr. 222; Ex. G-14). He also provides training in blasting safety and provides 

technical assistance to industry. He testified that shock tube is an explosive material, but its 

strength is limited so that it is relatively safe to anyone standing more than 25 meters away. (Tr. 

225- 38; Ex. G-14b). He testified that this product presents a fire hazard. In addition, improper 

storage or mishandling can cause misfires when the shock tube is used. (Tr. 239-41). Misfires 

are one of the top five causes of blasting accidents. Id. 

Jon Bruner, who is in charge of product management for Dyno-Nobel, Inc., testified on 

behalf of Nelson Quarries by telephone. He does not have a technical or scientific background. 

(Tr. 257). He testified that shock tube is not a high explosive. (Tr. 246-49). If the shock tube 

were ignited, it could cause burning injuries if it were in your hand, but it would not explode and 

it would not cause a fatal injury. (Tr. 251 ). He stated that if a spool of shock tube were 

accidently shot, an injury would be unlikely. (Tr. 253). He admitted that shock tube is a low 

explosive and must be stored in a magazine under MSHA's regulations. (Tr. 256-57). He also 

admitted that the presence of dirt, sand, and grit could make the shock tube more sensitive to 

detonation. (Tr. 264). 

30 FMSHRC 259 
Patrick Clift, a foreman at Plant 4 for Nelson Quarries, testified that he was not aware that 

the shock tube was in the parts trailer. He stated that he was the only foreman at plant 4. (Tr. 

274, 276). When he was interviewed by MSHA on February 2, 2006, he stated that Gene Andres 

was also a plant foreman. (Tr. 280-81; Ex. G-137h, p. 4). The mine's legal identity report lists 

Mr. Andres as the foreman and the person in charge of safety. (Tr. 281-83). Nelson Quarries has 

now given Mr. Andres the title of"lead man." (Tr. 284). 

Gene Andres testified that he was not really a foreman at the time of the MSHA 

inspection, but he was the person in charge at Plant 4. (Tr. 293). He was not a foreman because 

he did not have the power to hire and fire employees or to discipline them. (Tr. 294). He can 

always call the foreman when important decisions need to be made. He testified that the parts 

trailer was not lighted. He was not aware that the shock tube was present until the inspector 

found it. (Tr. 295). Although he performs the daily workplace examinations, he does not walk 

all the way to the back of the trailer. He just makes sure that there is a clear walkway to the back 

of the trailer. He made sure that there was access to the back of the trailer, but he did not notice 

the shock tube when he performed his examination that Monday. (Tr. 309-10). He denies that 

he admitted to Inspector Crelly that he knew that the shock tube was in the trailer. He said that 

after June 2005, Buckley Powder Company did all of the blasting at the mine and that, therefore, 

the shock tube must have been present since that date. (Tr. 296). 

During his interview with an MSHA inspector in February 2006, Andres referred to· 

himself as the "plant foreman," he said that he "direct[ ed] the work force," and he had the 

authority to tell "the workers what to do." (Tr. 307; Ex. G-137g, p. 2). He also stated that 

although he did not have the authority to hire or fire anyone or to discipline anyone, he could 

"recommend that they be disciplined or maybe talk to them if they do something wrong." Id. In 

this same interview with MSHA, Andres further stated that he does not inspect the parts trailer 

"because no one works in the parts trailer." (Tr. 310; Ex. G-137g, p. 4). 

In its brief, Nelson Quarries makes two arguments. First, it argues that the inspector was 

confused about the nature of the material in the parts trailer. Shock tubing, by itself, cannot set 

off explosives because it is not strong enough. It contains 15 milligrams of HMX/aluminum 

powder per meter. Any combustion would have been contained within the plastic tubing. 

Without a detonator present, the shock tube did not pose a hazard to miners. The accidents cited 

by MSHA occurred after the shock tubing had been inserted into a detonator. Second, Nelson 

Quarries argues that Gene Andres was not its agent but was simply a lead man. The only 

foremen were Mike Peres and Patrick Clift and only their actions can be imputed to Nelson 

Quarries. It relies on the Commission's decision in Martin Marietta Aggregates and on the 

unpublished decision of the 9th Circuit in Original Sixteen to One Mine, Inc. v. FMSHRC, 175 

Fed. Appx. 825, 2006 WL 897570. . 

I find that the shock tube is an explosive as that term is used in the safety standard. 

Thomas Lobb testified that shock cord is classified as an explosive and is required to be stored in 

a magazine. (Tr. 225-37; Ex. G-14b). While it is not likely that the shock tube would create a 

30 FMSHRC 260 
serious explosion hazard, it could help propagate a fire. In addition, he testified that shock tube 

can misfire when handled or stored improperly. I credit the testimony of Mr. Lobb. As a 

consequence, the Secretary established a violation because the shock tube was not stored in a 

magazme. 

A violation is classified as S&S "if based upon the 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." National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out a four-part test for 

analyzing S&S issues. Evaluation of the criteria is made assuming "continued normal mining 

operations." US. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The question of 

whether a particular violation is S&S must be based on the particular facts surrounding the 

violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988). The Secretary must establish: (1) the 

underlying violation of the safety standard; (2) a discrete safety hazard, 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 Secretary is not required to show that it is more probable than not 

that an injury will result from the violation. US. Steel Mining Co., 18 FMSHRC 862, 865 (June 

1996). 

The Secretary established a violation and that a discrete safety hazard was created. I also 

find that it was reasonably likely that the hazard contributed to would result in an injury 

assuming continued mining operations. Smoking was not prohibited in the area, cigarette butts 

were found in and around the trailer, and the shock tube would vigorously bum in the event of a 

fire. (Tr. 199). Anyone in the trailer was exposed to the hazard. In addition, ifthe shock tube 

were used, it could misfire because it had not been properly stored. Any injury would be of a 

reasonably serious nature. I find that the Secretary established that the violation was S&S. 

Unwarrantable failure is defined as aggravated conduct constituting more than ordinary 

negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is 

characterized by such conduct as "reckless disregard," "intentional misconduct," "indifference," 

or the "serious lack of reasonable care." Id. 2004-04; Rochester & Pittsburgh Coal Co., 13 

FMSHRC at 193-94. A number of factors are relevant in determining whether a violation is the 

result of an operator's unwarrantable failure, such as the extensiveness of the violation, the 

length of time that the violative condition has existed, the operator's efforts to eliminate the 

violative condition, whether an operator has been placed on notice that greater efforts are 

necessary for compliance, the operator's knowledge of the existence of the violation, and 

whether the violation is obvious or poses a high degree of danger. Mullins & Sons Coal Co., 16 

FMSHRC 192, 195 (Feb. 1994); Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999); 

Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). 

It is clear that the shock tube had been in the parts trailer for some time. Inspector Crelly 

testified that Mr. Andres told him that he knew it was there. (Tr. 194, 216). The inspector wrote 

30 FMSHRC 261 
the following in his citation notes: "Gene Andres, foreman, stated that he knew this explosive 

material should not have been stored in this parts trailer and it had been since at least 6/2005" 

(Ex. G-13b). The shock tube was in plain view and the inspector saw it upon entering the trailer. 

Andres testified that he did not know that the shock tube was present and that, when he 

conducted his daily examinations, he did not walk to the back of the trailer where the shock tube 

was stored. He admitted that it is likely that the shock tube had been in the parts trailer since 

June because that is when Nelson Quarries stopped performing its own blasting. 

I find that the Secretary established that the violation was the result of the operator's 

unwarrantable failure. Inspector Crelly testified that the condition was obvious and that he 

observed the shock tube when he entered the trailer. The record also establishes that the 

condition had existed for some time. I credit Crelly's testimony and inspection notes on this 

issue and find that Andres was aware that it was present. 

I find that Mr. Andres was an agent of Nelson Quarries in this instance. Andres 

accompanied MSHA inspectors during inspections as the company's representative and he acted 

in that capacity during the instant inspection. (Tr. 188). When Inspector Crelly started his 

inspection, Mr. Andres told him that he was the foreman. Andres was listed as a foreman and as 

a person in charge of health and safety in MSHA's legal identity report. (Tr. 185; Ex. G-4). 

Andres was responsible for conducting the daily workplace examinations at the plant. The 

Commission has held that a miner is the agent of a mine operator when carrying out the required 

examinations entrusted to him by the operator. Rochester & Pittsburgh Coal Co., 13 FMSHRC 

189 ,194 (February 1991). Andres was compensated at a higher rate of pay than other 

employees. When interviewed on February 1, 2006, by an MSHA special investigator, Andres 

stated that he was a foreman and that he had the authority to direct the workforce, assign tasks, 

shut down equipment for safety conditions, and recommend that an employee be disciplined or 

terminated. (Tr. Ex. G-137g). Peres and Clift travel from plant to plant with the result that 

Andres was in charge of Plant 4 when neither Peres nor Clift was around. Although Andres 

could not hire or terminate an employee, he made recommendations to Peres and Clift. I find 

that Mr. Andres sufficiently meets the Commission's multi-factor test for the imputation of an 

agent's negligence to a mine operator for purposes of penalty assessments and unwarrantable 

failure findings as set forth in Martin Marietta Aggregates, 22 FMSHRC 633, 636-40 (May 

2000). The fact that only Nelson family members could make the ultimate decision on 

disciplinary issues does not negate the fact that other individuals, including Andres, were given 

responsibilities that are normally delegated to management personnel. (Tr. 274). 1 

I also find that the court's decision in Original Sixteen to One does not support the 

position of Nelson Quarries. That case was factually driven and the court specifically determined 

that there was "no evidence in the record that [the lead man's] function 'involved responsibilities 

normally delegated to management personnel,' or that he 'exercised managerial responsibilities 

at the time of his negligent conduct.'" (quoting Martin Marietta Aggregates). The court found 

1 Both Peres and Clift are related to the Nelson family by marriage. 

30 FMSHRC 262 
that the lead man's authority to assign tasks to the other miners with whom he was working that 

day is not by itself sufficient to support a finding that he is an agent. It is clear to me that Andres 

had more authority at the plant than the lead man at the Sixteen to One Mine. 

For the reasons set forth above, the citation is affirmed as written. I find that the 

Secretary's proposed penalty of $1,000.00 is appropriate taking into consideration the penalty 

criteria set forth in section 1 lO(i) of the Mine Act. 

2. On November 16, 2005, Inspector Crelly issued Order No. 6291251 under section 

104(d)(l) of the Mine Act alleging a violation of section 56.6300(b). (Ex. G-15). The citation 

alleges that the crusher operator shot oversized material out of the hopper at the crusher and he 

was neither trained nor experienced with the handling and use of explosive material. The citation 

states that Mr. Andres told the inspector that the "hopper has to be shot whenever an oversized 

rock is sent to the crusher and the crusher operator is not qualified to handle explosives and he 

was aware of this." (Ex. G-15). Inspector Crelly determined that an injury was reasonably likely 

and that any injury would likely be fatal. He determined that the violation was S&S and that the 

negligence was high. The safety standard provides that "[t]rainees and inexperienced persons 

shall work only in the immediate presence of persons trained and experienced in the handling and 

use of explosive material." The Secretary proposes a penalty of $1,300.00 for this order of 

withdrawal. 

The inspector testified that the crusher operator, who was not trained or experienced in 

the use of explosives, was shooting material out of the hopper without a trained miner being 

present. (Tr. 204, 208). Inspector Crelly testified that when he went into the crusher shack he 

saw a stick of high explosive (Boostrite) sitting in the shack. When he asked why it was there, 

the crusher operator told him that he shot oversized rock in the hopper the previous Monday and, 

because he did not use all of the explosive material he had removed from the magazine, he put it 

in the crusher shack. (Tr. 204-05, 207; Ex. G-74c). It was in a tray next to what the inspector 

called "shotgun primers." (Tr. 206). Shotgun primers are initiation devices used to set off a high 

explosive. Id. Thus, the inspector testified that he observed a high explosive stored next to 

detonators in the crusher shack. (Tr. 207). The crusher operator had been smoking in the crusher 

shack. (Tr. 209-10). 

Inspector Crelly determined that the violation was S&S because if the cited practice 

continued it was reasonably likely that someone would be seriously injured or killed. (Tr. 212-

13). The inspector saw the crusher operator smoking in the crusher shack. Inspector Crelly 

determined that the violation was caused by the operator's unwarrantable failure to comply with 

the standard because the violation was obvious and it appeared to be a standard practice at the 

mine. (Tr. 214-15). The inspector admitted that the crusher operator had been told by 

management not to smoke in or around the crusher shack. (Tr. 219). 

Mr. Clift testified that the crusher operator was Travis Tomlinson and Tomlinson had 

been trained to handle and use explosives. (Tr. 275). He testified that other Nelson Quarries 

30 FMSHRC 263 
employees had shown Tomlinson how to shoot out crushers at other plants owned by the 

company and that Tomlinson had helped other more experienced miners perform that task before 

he did so on his own. He further testified that an untrained employee can seriously damage the 

crusher ifhe improperly uses explosives. (Tr. 276). The order was terminated after Mr. Andres 

instructed employees that he was the only experienced and trained person who was authorized to 

use explosives, and he took possession of the keys to the magazine. (Tr. 288; Ex. G-15). 

Gene Andres denied that he ever told fuspector Crelly that the crusher operator was not 

qualified to handle and use explosives. (Tr. 296-97). He merely told Crelly that he had not 

personally trained Tomlinson. An untrained person could seriously damage the equipment ifhe 

shoot explosives inside the crusher. {Tr. 298). He testified that he previously observed 

Tomlinson shoot a rock in the crusher but he could not remember when that was. (Tr. 300, 317). 

He also stated that he was at the plant when Tomlinson shot the rock in the crusher in November 

2005 and that he observed him doing so. Andres testified that he did not notice that Tomlinson 

stored the second stick of Boostrite in the crusher shack or that shotshell primers were being 

stored there as well. {Tr. 300-01). Andres also said that he did not know where Tomlinson got 

the cap for the blast that day. 

fu his interview with an MSHA inspector in February 2006, Andres said "I normally go 

with the crusher operator to shoot, but I didn't know that [Tomlinson] was shooting that day and 

he forgot to take the explosives back and left a stick of Boostrite in the crusher booth the day 

before the MSHA inspection." {Tr. 305-06; Ex. G-13 7 g, p. 5). He further stated that when he 

saw the Boostrite during the MSHA inspection, "I liked to have had a heart attack when I saw the 

explosives in there ... I didn't know that he was shooting that Monday." Id. 

fu its brief, Nelson Quarries argues that Inspector Crelly did not listen to the answer of 

Andres when he asked if Tomlinson was trained in the use of explosives. Andres merely stated 

that he had not trained him. The record establishes that Tomlinson came to Plant 4 already 

trained by company employees at another plant. The record also shows that an untrained miner 

could injure himself and seriously damage or destroy a very expensive primary crusher. Nelson 

Quarries argues that it would never take such a risk. fudeed, when Crelly asked Tomlinson if he 

knew that he should not be smoking around explosive materials, he answered in the affirmative 

by stating he had been taught that smoking was prohibited during his training. (Ex. G-12 p. 19). 

Mr. Clift testified that Tomlinson had been trained by two company blasters and that the 

company does not allow untrained miners to use explosives. Clift also testified that the method 

of abatement was actually chosen by the inspector and the company agreed to the abatement to 

finish the inspection. To abate, the company agreed that Andres will be the experienced and 

trained miner who can handle explosives. Nelson Quarries and Mr. Andres felt intimidated by 

MSHA because the agency had multiple inspectors at the plant and at the other plants during the 

same period of time. They felt that they were under the gun and ask that the order be vacated. 

fu her brief, the Secretary argues that the record does not support the company's 

arguments. The record demonstrates that Andres "was neither intimidated nor confused when he 

30 FMSHRC 264 
told Inspector Crelly that Travis Tomlinson had not received training in the handling and use of 

explosive materials." (S. Br. 7). The Secretary argues that Andres testimony should not be 

credited because he said contradictory things during the investigation and at the hearing. At the 

hearing, Andres testified that he watched Tomlinson shoot out the hopper for the crusher. (Tr. 

300-01). Mr. Andres previously told MSHA's special investigator that he was running a loader 

that day and was not aware that Tomlinson was shooting the crusher. (Tr. 304-06; Ex. G-137g, 

p. 5). The Secretary states that the inspector recorded his conversation with Andres in his field 

notes and that Andres signed these notes. (Tr. 195-96, 313; Ex. G-12 p. 11). In addition, 

Tomlinson told Inspector Crelly that b,e was "uncomfortable" handling explosives. (Tr. 207-08). 

Finally, the Secretary argues that the fact that Tomlinson stored boostrite in the crusher shack 

next to the shotgun primers and that he smoked in the area demonstrates that he had not been 

properly trained in the handling of explosives. 

The resolution of this order depends almost entirely on credibility determinations. I credit 

the testimony of Inspector Crelly and the exhibits presented by the Secretary. The company's 

evidence was both conflicting and unpersuasive. First, although I have no doubt that Nelson 

Quarries did not want inexperienced persons handling and shooting explosives, the 

preponderance of the evidence establishes that Tomlinson was neither sufficiently trained nor 

experienced to be shooting the hopper of the crusher without direct supervision. I find that Mr. 

Andres was operating a loader at the time Tomlinson shot the hopper for the crusher. Mr. Clift 

testified that he talked to Russ and James Caudill and Chris Eagle and they told him that they 

trained Tomlinson on the use of explosives at another plant. (Tr. 275). Specifically, he stated 

that Tomlinson "helped Chris Eagle shoot out a crusher, I believe, its been a long time ago when 

we worked at Gas [Kansas], I believe I saw him help Chris Eagle at one point, but that was a long 

time ago, so [testimony interrupted]" Id. This testimony is so weak that I cannot give it much 

weight. No credible evidence was presented by the company to show that Tomlinson had 

actually been trained or was sufficiently experienced. Consequently, I find that the Secretary 

established a violation. Mr. Tomlinson, who was not sufficiently trained or experienced, shot a 

rock in the hopper when he was not in the immediate presence of someone trained and 

experienced in the handling and use of explosive material. 

It is clear that the violation was S&S because it was reasonably likely that the hazard 

contributed to by the violation would result in death or serious injury assuming continued mining 

operations. Inexperienced and untrained miners pose a hazard to themselves when handling 

explosives. 

Inspector Crelly determined that this violation was obvious by talking to Messrs. Andres 

and Tomlinson. It appeared to Crelly that the company did not have in place appropriate 

procedures for the handling and use of explosives. Tomlinson did not return the unused 

Boostrite to the magazine but stored it in the crusher shack. Mr. Andres left blasting caps in his 

truck so that anyone could get them. There was little or no security for explosives at the plant, 

shock tube was stored in a parts trailer, and Tomlinson smoked around explosives. The inspector 

testified that "the way they handled the explosives or stored the explosives showed me that they 

30 FMSHRC 265 
did not have respect for it." (Tr. 215). I find that a preponderance of the evidence supports the 

Secretary's determination that the violation was the result of the company's unwarrantable failure 

to comply with the safety standard. The violation was obvious and it appears that there was little 

to no supervision of the use and storage of explosives at the site. Tomlinson apparently was 

uncomfortable handling and using explosives yet he was permitted to shoot the crusher. No 

effort had been made to properly train Tomlinson. Nothing in the record suggests that this was 

an isolated or unusual event. The operator's attitude toward the storage and use of explosive 

material was rather casual given the serious hazard that was posed. I find that Nelson Quarries 

was rather indifferent toward the hazard and that their conduct exhibited a serious lack of 

reasonable care. A penalty of $1,500.00 is appropriate for this violation. 

C. CENT 2006-178-M, Plant 1. 

1. On November 16, 2005, Inspector Chrystal Dye issued Citation No. 6291644 alleging 

a violation of section 56.20003, as modified. (Ex. G-3). The citation alleges that there was about 

four inches of material on the walkway of the Cedar Rapid screen #620 and that material covered 

an area that was about four by six feet. Inspector Dye determined that an injury was unlikely but 

that any injury could reasonably be expected to be permanently disabling. She determined that 

the violation was not S&S and that the negligence was moderate. The safety standard provides, 

in part, that "[ w ]orkplaces, passageways, storerooms, and service rooms shall be kept clean and 

orderly." The Secretary proposes a penalty of $614.00 for this citation. 

Inspector Dye testified that the cited area is both a passageway and a potential workplace 

when maintenance is being performed. (Tr. 46; Ex. G-3). The material was up to the height of 

the four inch toe boards. (Tr. 47). The walkway is rarely used, but there was a fixed ladder used 

for access to the area. (Tr. 48, 83). It was most likely used for maintenance and repair. The area 

was 10 to 12 feet above the ground and the accumulated material created a tripping and 

stumbling hazard. There was a substantial railing along the walkway. (Tr. 83). Inspector Dye 

estimated that it would take at least one day of production for this amount of material to 

accumulate. (Tr. 50). Kenneth Nelson, the president of Nelson Quarries, testified that the only 

time anyone would be up on the walkway would be to change screens about once every two 

months when the screen is operating. (Tr. 97-99). Because material often falls off the screen, 

onto the walkway, miners clean the area when they need to access the walkway. Id. 

I find that the Secretary did not establish a violation. It is clear that the cited area was a 

workplace or a passageway. The key factor here is that miners travel to the cited walkway for the 

screen only when the screen is changed. I credit Mr. Nelson's testimony in this regard. The 

screen is changed about once every two months assuming that the Cedar Rapids screen is being 

used on a continuous basis. The plant operates intermittently. Under the Secretary's 

interpretation of the safety standard, miners would have to regularly travel to the walkway for the 

sole purpose of cleaning it even though miners would not be working or walking on the walkway 

for days or weeks. If it only takes a day or two for material to accumulate, miners would be 

required to clean the walkway repeatedly even though it was not being used. This repeated 

30 FMSHRC 266 
cleaning would needlessly expose miners to the very slipping and tripping hazards that the safety 

standard was designed to prevent. There has been no showing that miners have ever walked or 

worked on the cited walkway without first cleaning it off This citation is vacated. 

2. On November 16, 2005, Inspector Dye issued Citation No. 6291646 alleging a 

violation of section 56.18012. (Ex. G-4). The citation alleges that there were no emergency 

phone numbers posted at the mine. Inspector Dye determined that an injury was unlikely and 

that any injury would not result in any lost work days. She determined that the violation was not 

S&S and that the negligence was moderate. The safety standard provides that "[ e ]mergency 

phone numbers shall be posted at appropriate telephones." The Secretary proposes a penalty of 

$614.00 for this citation. 

MSHA requires that phone numbers for the fire department, hospitals, poison control, and 

the like be posted at every mine. (Tr. 53-54). These numbers are typically posted at the scale 

house at small surface mines. Inspector Dye stated that this requirement is not obviated by the 

use of cell phones. Programming a cell phone with these numbers is not sufficient. (Tr. 55). A 

person who may need to make an emergency call, such as truck drivers for customers, may not 

have access to the programmed cell phone. No telephone had been installed at the scale house. 

(Tr. 85, 93). Foremen keep cell phones in their pickup trucks. (Tr. 117). The county has "911 

Service" so a miner or a truck driver can call 911 to obtain emergency assistance. (Tr. 94). 

Sometimes customers are at the site loading material into trucks when employees of Nelson 

Quarriesarenotpresent. (Tr.117-18). 

I find that the Secretary established a violation. The gravity is obviated by the prevalence 

of cell phones and the fact that the county has 911 service. A penalty of $40.00 is appropriate. 

3. On November 16, 2005, Inspector Dye issued Citation No. 6291647 alleging a 

violation of section 109(a) of the Mine Act. (Ex. G-5). The citation alleges that there was no 

bulletin board at the mine for posting documents required by law to be posted. Inspector Dye 

determined that an injury was unlikely and that any injury would not result in any lost work days. 

She determined that the violation was not S&S and that the negligence was moderate. The Mine 

Act provides that there "shall be a bulletin board at ... a conspicuous place near an entrance of 

[the] mine" for use is posting "orders, citations, notices and decisions required by law or 

regulation to be posted .... " The Secretary proposes a penalty of $203 .00 for this citation. Dye 

testified that most small mines do not have an office so they place a bulletin board at the scale 

house. (Tr. 56). This plant did not have a bulletin board anywhere on the site. Kenneth Nelson 

testified that the company keeps employees informed of their rights. (Tr. 97). 

I find that the Secretary established a violation. The requirement for a bulletin board is 

set forth in the Mine Act itself. A penalty of $60.00 is appropriate. 

4. On November 16, 2005, Inspector Dye issued Citation No. 6291645 alleging a 

violation of section 56.14107(a). (Ex. G-6). The citation alleges that the head pulley for belt 712 

30 FMSHRC 267 
was not guarded to prevent persons from becoming entangled in moving machine parts. The 

citation states that the head pulley was 4Yz feet above the ground. Inspector Dye determined that 

an injury was unlikely but that any injury would likely be fatal. She determined that the violation 

was not S&S and that the negligence was moderate. The safety standard provides that "[ m ]oving 

machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive, 

head, and takeup pulleys, flywheels, coupling, shafts fan blades; and similar moving parts that 

can cause injury." The Secretary proposes a penalty of $614.00 for this citation. 

Inspector Dye testified that the violation was obvious. (Tr. 73-74). She said that 

someone could come into contact with the head pulley while cleaning under it or while walking 

in the area. Employees shovel out accumulations because they do not have Bobcat or other scoop 

at the quarry. (Tr. 76). She stated that it would be easy for a miner's clothing to become 

entangled in the pulley. 

Kenneth L. Nelson testified that he had only been issued three citations alleging 

inadequate guards on moving machine parts at all the company's plants since 2003. (Tr. 94). 

The company has up to 100 guards at each plant. Nelson testified that the MSHA inspectors 

were "a lot more aggressive" during the inspections at issue in these cases. {Tr. 95). He believed 

that MSHA was 'judging us differently on our guards than they ever have in the past." Id. 

Nelson objected to the fact that MSHA changed its guarding requirements but then inspected all 

of its plants at the same time so that it could not meet these new requirements before citations 

were issued. He said that he believes that MSHA previously inspected the head pulley in the 

same condition without issuing a citation. {Tr. 100-01). These inspections occurred when the 

unit was at a different location. (Tr. 107). The sides of the pulley, which protect the pinch 

points, have always been guarded. Id. 

In addition, Nelson testified that there is another conveyor right in front of the cited 

conveyor that is directly in front of the cited head pulley and that this conveyor restricts access to 

the cited area. {Tr. 100; Ex. R-178). Although he did not measure the height of the head pulley, 

he estimates that it was over six feet above the ground. {Tr. 111 ). 

The Commission addressed the issue of reasonable notice with respect to the Secretary's 

guarding standard in Alan Lee Good dlb/a Good Construction, 23 FMSHRC 995 (Sept. 2001). 

The Secretary has been enforcing this standard for about 23 years. In Good Construction, the 

mine operator contended that it did not have adequate notice of the requirements of 30 C.F.R. § 

56.14107(a) because the language of the safety standard "does not provide reasonably clear 

guidance regarding how any particular moving part should be guarded, allows inconsistent 

interpretation by inspectors, and is unconstitutionally vague based on the fact that other MSHA 

inspectors never cited these same conditions over the past 18 years." Good Construction at 1002. 

The moving machine parts were guarded in that case, but the MSHA inspector determined that 

the guarding was insufficient. 

30 FMSHRC 268 
The Commission's decision was split on the issue of how that particular case should be 

handled. Nevertheless, when put in the context of previous Commission decisions, I believe that 

the holding is essentially the same in both opinions with respect to how this issue should be 

analyzed in future cases, as summarized in the opinion of Commissioners Jordan and Beatty. 

In applying the reasonably prudent person standard to a 

notice question, the Commission has taken into account a wide 

variety of factors, including the text of a regulation, its placement 

in the overall enforcement scheme, its regulatory history, the 

consistency of the agency's enforcement, and whether MSHA has 

published notices informing the regulated community with 

"ascertainable certainty" of its interpretation of the standard in 

question. Also relevant is the testimony of the inspector and the 

operator's employees as to whether the practices affected safety. 

Finally, we have looked to accepted safety standards in the field, 

considerations unique to the mining industry, and the 

circumstances at the operator's mine. 

23 FMSHRC 1005 (citations and footnote omitted). 

The language of the standard states that moving machine parts that can cause injury, 

including drive, head, tail, and take-up pulleys, must be guarded. In the preamble to the final 

rule, the Secretary emphasized the broad construction of this safety standard. The preamble 

states: 

[T]he final standard requires the installation of guards to protect 

persons from coming into contact with hazardous moving machine 

parts. The standard clarifies that the objective is to prevent contact 

with these machine parts. The gu.ard must enclose the moving 

parts to the extent necessary to achieve this objective. 

53 Fed. Reg. 32496, 32509 (Aug. 25, 1988) (emphasis added). The preamble further provides: 

Under the final rule, the standard applies where the moving 

machine parts can be contacted and cause injury. Some 

commenters believed that guards should provide protection against 

inadvertent, careless, or accidental contact but not against 

deliberate or purposeful actions. They consider guards which 

totally enclose moving parts as counter-productive to other safety 

considerations such as proper work procedures, training, and 

general attention to hazardous conditions 

30 FMSHRC 269 
Id. In rejecting these comments, the Secretary stated that most injuries caused by moving 

machine parts occur when persons are "performing deliberate or purposeful work-related actions 

with the machinery" and that the installation of a guard would have prevented these injuries. Id. 

The Secretary stated that "(g]uards provide a physical barrier, which offers the most effective 

protection from hazards associated with moving machine parts." Id. Thus, the Secretary 

provided notice to the regulated community that she would interpret this safety standard very 

broadly to protect persons from coming into contact with moving machine parts and that the 

standard covers deliberate actions by employees. 

The Secretary's Program Policy Manual ("PPM") provides additional information to the 

public about the Secretary's interpretation of safety standards. The PPM provides, in part, as 

follows: 

All moving parts identified under this standard are to be guarded 

with adequately constructed, installed and maintained guards to 

provide the required protection. The use of chains to rail off 

walkways and travelways near moving machine parts, with or 

without the posting of warning signs in lieu of guards, is not in 

compliance with this standard. 

(Ex. G-6d; N MSHA, U.S. Dep't of Labor, Program Policy Manual, Part 56/57.14107 (2000) 

("PPM")). Although the PPM is not binding on the Secretary, it does provide the mining 

community with notice ofMSHA's interpretation of her safety standards. 

Finally, the Secretary published MSHA 's Guide to Equipment Guarding. (Ex. G-6c ). 

Although this booklet is again not binding on the Secretary, it includes text and illustrative 

drawings to show what the agency considers to be adequate guarding under the safety standard. 

At the hearing, I ruled that the Nelson Quarries had adequate notice of the requirements 

of the standard because the violation was patently obvious. (Tr. 121, 790-92). Quite simply, a 

reasonably prudent person would recognize that the existing guarding did not protect persons 

from coming into contact with hazardous moving machine parts. A miner could approach the 

head pulley from the side and come in contact with moving parts that could injure a miner. 

Although Nelson Quarries correctly stated that material on this belt dumps onto another belt, 

there were accumulations in the area under the belt which would require shoveling from time to 

time. (Ex. R-l 78b).2 Access was limited from the front but not from the side. I credit the 

testimony of Inspector Dye as to the accessibility of moving machine parts. 

This plant is moved from location to location as the need arises. Although the plant is set 

up in the same basic configuration at each location, access to moving machine parts may be more 

limited at some locations and other MSHA inspectors may have overlooked the condition as a 

2 This photograph was taken after the condition had been abated. 

30 FMSHRC 270 
result. The interpretive material issued by MSHA, including its guide to equipment guarding, 

makes clear that the guards present at the time of the inspection were inadequate to protect 

miners. Nelson Quarries did not sustain its burden of showing that the lack of previous citations 

led it to believe that additional guarding was not required. I find that the Secretary provided 

adequate notice to the mining community that the guard provided at the head pulley was 

inadequate to meet the requirements of the standard. 3 

For these reasons, I affirm this citation as a non-S&S citation with moderate negligence. 

A penalty of $100.00 is appropriate. 

5. On November 21, 2005, Inspector Thomas Barrington, an electrical inspector from 

Salt Lake City, issued Citation No. 6317464 alleging a violation of section 56.12025. (Ex. G-8). 

The citation alleges that the grounding system on the 527 conveyor was not being maintained in 

that a ground resistance test measured 200 ohms to ground. Inspector Barrington determined that 

an injury was reasonably likely and that any injury would likely be fatal. He determined that the 

violation was S&S and that the negligence was moderate. The safety standard provides that 

''[a]ll metal enclosing or encasing electrical circuits shall be grounded .... " The Secretary 

proposes a penalty of $963.00 for this citation. 

Inspector Barrington testified that the grounding system on the conveyor was not effective 

because the resistance in the grounding circuit was too high to effectively open the circuit 

protective device. (Tr. 143). He used an analog volt/ohm meter to test the grounding system. 

There was a grounding wire present. When he tested the system, he stayed in the motor control 

center (MCC) with the meter and a lead was taken by a Nelson Quarries employee or another 

inspector to each motor at the plant. (Tr. 165-6). He tested the system several times to make 

sure that his readings were accurate. (Tr. 157). A grounding system must provide a continuous 

grounding medium back to the source and it must have low impedance. (Tr. 144). The phase-tophase voltage on the conveyor was 480 volts while phase-to-ground was 277 volts. Any miner 

working in around the plant was exposed to the hazard and he could receive burns or could be 

electrocuted. (Tr. 155). The inspector determined that an injury is reasonably likely because the 

components at the plant are made of metal and the resistance is high. (Tr. 155, 158). 

Kenneth Nelson testified that it has performed the resistance and continuity test annually 

and whenever equipment is moved as required by MSHA. (Tr. 173). If the resistance is higher 

3 I vacated a guarding citation for lack of notice in my decision in Higman Sand & 

Gravel, 24 FMSHRC 87 (Jan. 2002) , for a number of reasons that do not apply here. First, the 

plant at issue in that case was not moved around. Second, the guard that was present was quite 

substantial and the cited opening in the guard was quite small. In addition, cleanup was not 

performed with shovels in that instance. MSHA had previously cited the same pulley because 

the guard had been removed but the inspector accepted the guard as adequate when it was 

replaced to abate that citation. 

30 FMSHRC 271 
than expected, it can usually be corrected by cleaning corrosion from around the area where the 

grounding wire is attached to the equipment. 

I find that the Secretary established an S&S violation of the safety standard. I credit the 

inspector's testimony that he correctly tested the grounding system~ Although corrosion may 

. have created the problem, the hazard was still present and serious. It was reasonably likely that 

someone would be injured or electrocuted ifthe condition were not corrected. A penalty of 

$500.00 is appropriate taking into consideration the penalty criteria~ 

6. On November 21, 2005, Inspector Barrington issued Citation No. 6317465 alleging a 

violation of section 56.12025. (Ex. G-9). The citation alleges that the grounding system on the 

614 conveyor was not being maintained in that a ground resistance test measured 2.5 ohms to 

ground. Inspector Barrington determined that an injury was reasonably likely and that any injury 

would likely be fatal. He determined that the violation was S&S and that the negligence was 

moderate. The Secretary proposes a penalty of $614. 00 for this citation. 

As with the previous citation, Inspector Barrington testified that the grounding system on 

the conveyor was not effective because the resistance in the grounding circuit was too high to 

effectively open the circuit protective device. (Tr. 159-60). He used an analog volt/ohm meter to 

test the grounding system. There was a grounding wire present. He tested the system several 

times to make sure that his readings were accurate. Because of the level of impedance on the 

grounding wire, the circuit breaker would not immediately trip. (Tr. 161). It would take several 

seconds before the breaker would trip. (Tr. 169). The metal components of the conveyor would 

become energized in the event of a fault and expose miners to an electrocution hazard. He 

testified that such an event was reasonably likely. 

My findings with respect to this citation are the same as with Citation No. 6317464. A 

penalty of$500.00 is appropriate. 

7. Prior to the hearing, the Secretary agreed to vacate Citation Nos. 6291635, 6291637, 

6291642, and 6291648. 

D. CENT 2006-200-M, Plant 5. 

1. On October 26, 2005, Inspector Dye issued Citation No. 6291576 alleging a violation 

of section 56.14107(a). (Ex. G-16). The citation alleges that there was inadequate guarding on 

the smooth head pulley on the #226 conveyor. The top of the belt was about 6 feet above the 

ground. The bottom of the pulley was adequately guarded, but the top was not. Inspector Dye 

determined that an injury was unlikely but that any injury would result in a disabling injury. She 

determined that the violation was not S&S and that the negligence was moderate. The Secretary 

proposes a penalty of $60.00 for this citation. 

30 FMSHRC 272 
Inspector Dye testified that although an unguarded smooth pulley is not as dangerous as 

an unguarded self-cleaning pulley, it still presents a hazard. (Tr. 324). There was a gap in the 

guarding for this pulley "where someone could reach in and make contact with the smooth head 

pulley." (Tr. 325, 430). She measured the distance to the open area as six feet off the ground. 

(Tr. 327, 432). She believes that it was possible for someone cleaning up accumulations to get 

the shovel handle or their shirt caught in the pulley if it were operating. Plant 5 had been in 

operation since December 2004. There were between 40 and 60 machine guards at this plant. 

(Tr. 323). The plant is cleaned up after it is shut down. (Tr. 432). 

Michael Peres, a superintendent and safety director for Nelson Quarries, testified that the. 

opening cited by Inspector Dye was about three inches wide and that the pulley was recessed 

about six inches. (Tr. 475-76). The pinch point for the pulley was further away from the 

opening. Mr. Peres has worked for Nelson Quarries for about 15 years and he has held about 

every position at the quarries. (Tr. 498). 

It is significant that the cited opening was about six feet above the ground. Nevertheless, 

the opening was large enough to pose a hazard. The pulley was recessed about six inches. 

Accumulations at the plant are generally cleaned up after it is shut down. I find that the Secretary 

established a violation but that the negligence was low. A penalty of $50.00 is appropriate. (Tr. 

794). 

2. On October 26, 2005, Inspector Dye issued Citation No. 6291584 alleging a violation 

of section 56.14107(a). (Ex. G-17). The citation alleges that the tail pulley on the Thor radial 

stacker was not adequately guarded. The citation states that the tail pulley was guarded on the 

sides but not on the bottom. The pulley was a little under six feet above the ground. Grease 

fittings were within six inches of the pulley. Inspector Dye determined that an injury was 

unlikely but that any injury would result in a disabling injury. She determined that the violation 

was not S&S and that the negligence was moderate. The Secretary proposes a penalty of $60.00 

for this citation. 

Inspector Dye testified that the smooth pulley was not guarded on the bottom. (Tr. 331 ). 

An employee could get under the pulley during cleanup operations or while greasing and his 

clothing could become entangled in the pulley. (Tr. 334). She does not know whether 

employees grease fittings around the pulley while the plant is operating. (Tr. 435-36). 

Mr. Peres testified that a miner would have to climb up on a concrete structure to be 

under the cited pulley. (Tr. 478; Ex. R-200k). Grease hoses were hanging down. The pulley 

was recessed within the structure of the radial stacker. (Tr. 480; Ex. R-200k). 

Although the possibility of an accident is low, there were exposed moving machine parts 

that posed a hazard to miners. I find that the Secretary established a violation but that the 

operator's negligence was low. A penalty of $50.00 is appropriate. (Tr. 795). 

30 FMSHRC 273 
3. On October 26, 2005, Inspector Dye issued Citation No. 6291592 alleging a violation 

of section 56.14107(a). (Ex. G-18). The citation alleges that there was no guard on the alternator 

belt and pulley on the Dresser Haul truck No. 1008. The cited area is only" accessed for 

maintenance or to check fluid levels. Inspector Dye determined that an injury was unlikely but 

that any injury would result in a disabling injury. She determined that the violation was not S&S 

and that the negligence was moderate. The Secretary proposes a penalty of $60.00 for this 

citation. 

Inspector Dye testified that the fan blades were guarded but that the belts and pulleys 

were not guarded. Miners may come in contact with the moving machine parts while checking 

fluid levels and performing maintenance. (Tr. 339-40). She stated that some fluids need to be 

checked while the engine is running. Often trucks are running when the operator conducts his 

pre-shift examination. At least two other citations had been previously issued to Nelson Quarries 

for failure to guard moving machine parts for a motor on a haul truck. (Tr. 342-43; Ex. G-18d). 

MSHA's guarding manual covers the guarding of belts and pulleys in engine compartments on 

mobile equipment. (Tr. 345; Ex. G-6c, p. 25). Dye testified that hands and fingers could be 

severely injured as a result of this violation. (Tr. 347-48). She does not know whether 

employees check fluid levels while the truck is running, but there would be nothing to stop 

anyone from doing so. (Tr. 437). The belts and pulleys are recessed within the frame. The 

guards installed at the factory for the radiator fan were in place. 

Mr. Peres testified that fluid levels are checked with the engine off. (Tr. 481). Checking 

fluid levels while the engine is running will give inaccurate readings. In addition, oil cannot be 

added to the engine while it is running. The cited pulleys and belts were recessed in the engine 

compartment. (Tr. 482). 

Although the cited belt and pulley were recessed, they were required to be guarded under 

the safety standard. The chance of injury is not great, but the guarding standard is designed to 

prevent accidental injury. As stated above, the standard takes into account ordinary human 

carelessness. The violation was not serious. The citation is affirmed and a penalty of $60.00 is 

appropriate. (Tr. 797). 

4. On October 26, 2005, Inspector Dye issued Citation No. 6291593 alleging a violation 

of section 56.14107( a). (Ex. G-19). The citation alleges that there were no guards on the 

alternator or the fuel injector drive pulley on the Euclid haul truck No. 1017. Inspector Dye 

determined that an injury was unlikely but that any injury would result in a disabling injury. She 

determined that the violation was not S&S and that the negligence was moderate. The Secretary 

proposes a penalty of $60.00 for this citation. Inspector Dye testified that the conditions cited in 

this citation were quite similar to those in the previous citation. (Tr. 348~52). Mr. Peres testified 

that fluids are neither checked nor added while the engine is running. (Tr. 483-84). 

The cited pulleys were required to be guarded under the standard. As in the previous 

citation, the chance of an injury is not great but the standard was put into place to prevent 

30 FMSHRC 274 
accidental injuries. The violation was not serious. A penalty of $60.00 is appropriate. (Tr. 797). 

5. On October 26, 2005, Inspector Dye issued Citation No. 6291569 alleging a violation 

of section 56. l 4 l 12(b ). (Ex. G-20). The citation alleges that the guard for the tail pulley on the 

impactor belt was not secured on one side. Inspector Dye determined that an injury was unlikely 

but that any injury would result in a disabling injury. She determined that the violation was not 

S&S and that the negligence was moderate. The safety standard provides "guards shall be 

securely in place while machinery is being operated, except when testing or making adjustments 

which cannot be performed without removal of the guard." The Secretary proposes a penalty of 

$60.00 for this citation. 

The inspector testified that vibration can cause a guard to become loose and fall from 

place. (Tr. 353). Because the guard was loose, there was an opening and, if someone were to 

trip and fall in the area, he could become entangled in the moving machine parts. (Tr. 354-59) 

No miners were testing or making adjustments to the machinery. (Tr. 358-59). The area of 

concern to the inspector was the area around the wire mesh. (Tr. 444). 

Peres testified that the pulley was guarded by a piece of solid metal that surrounded it. 

(Tr. 485; Ex. G-20c). That guard was provided by the manufacturer. The guard cited by the 

inspector was added by Nelson Quarries as an enhancement. Id. The mesh guard was added by 

Nelson Quarries because "we didn't feel like the factory guard was adequate." (Tr. 516). The 

part cited by MSHA, however, did not need additional guarding. The only reason the mesh was 

there was because the person who installed it neglected to cut it off. (Tr. 518). 

As I stated at the hearing, I find that the Secretary did not establish a violation. (Tr. 797-

98). The solid metal guard covered the moving machine parts. I credit the testimony of Peres on 

this citation that the expanded metal guard was attached to protect other areas and it simply 

overlapped the solid metal guard. The cited guard was not loose. Consequently, I vacate this 

citation. 

6. On October 26, 2005, Inspector Dye issued Citation No. 6291578 alleging a violation 

of section 56.14112(b). (Ex. G-21). The citation alleges that the guard on the self-cleaning tail 

pulley for conveyor No. 534 was hanging down in the area of the rollers, that the top and end 

guards were damaged, that the drive belt guard was missing on the top and back, and that the 

lower guard was not securely in place. Inspector Dye determined that an injury was unlikely but 

that any injury would result in a disabling injury. She determined that the violation was not S&S 

and that the negligence was moderate. The Secretary proposes a penalty of $60.00 for this 

citation. 

The inspector testified that there were a number of conditions on the conveyor that 

concerned her. The guard on the side had come loose at the top and had fallen down. (Tr. 361; 

Ex. G-21c). This exposed several rollers under the belt. In addition, the openings in the top 

guard were too large to be effective. (Tr. 363, Ex. G-2ld). The openings were about two to three 

30 FMSHRC 275 
inches wide. (Tr. 446). The drive guard belt was also missing. (Ex. G-21e). This area is not 

very high off the ground. (Tr. 364). She testified that no testing or repairs were being conducted 

at the time of the inspection. (Tr. 366). She was concerned that miners could get their fingers or 

hands entangled in the moving machine parts. She admitted that the tail pulley itself was 

adequately guarded. (Tr. 444). She also stated that the "troughing rollers" shown on Ex. G-21c 

are exempted under the guarding standard. (Tr. 446). 

Peres believes that the guard that was loose was still protecting the tail pulley. (Tr. 487; 

Ex. G-2lc). The only exposed moving machine parts are the troughing rollers, which are not 

required to be guarded. He also testified that the pulley was about ten inches from the guard at 

the top. As a consequence, he does not believe that anyone could get caught in the pulley. (Tr. 

488; Ex. G-21d). Finally, the drive belt was normally about six to seven feet above the ground. 

(Tr. 489). The inspector was able to reach the area because she was standing on top of 

accumulations. 

For the reasons set forth at the hearing, I affirm this citation. (Tr. 798-800). I find that 

the conditions cited by Inspector Dye violated the safety standard. The area was accessible. 

Although she had to stand on accumulations to see the drive belt, miners would be able to do so 

too. A penalty of $60.00 is appropriate. 

7. On October 26, 2005, Inspector Dye issued Citation No. 6291579 alleging a violation 

of section 56.14112(b). (Ex. G-22). The citation alleges that the guarding material on the tail 

pulley for conveyor No. 516 was not secured at the bottom and that this condition could allow 

miners to come into contact with moving machine parts on the belt. The inspector determined 

that an injury was unlikely but that any injury would result in a disabling injury. She determined 

that the violation was not S&S and that the negligence was moderate. The Secretary proposes a 

penalty of $60.00 for this citation. 

The inspector testified that there was a gap in the belting material that was being used as a 

guard. (Tr. 367; Ex. G-22c). The gap was present because the belting was not securely in place. 

(Tr. 368). As a consequence, Inspector Dye believed that someone could come into contact with 

the moving machine parts. (Tr. 370). The inspector could not remember how far back into the 

frame the tail pulley was recessed. (Tr. 450). Peres testified that the pulley was recessed inside 

the frame of the conveyor about six to eight inches. (Tr. 490). 

As I stated at the hearing, the Secretary established a violation because the gap presented 

a hazard to employees as illustrated in the photograph. (Tr. 800; Ex. G-22c). Because the pulley 

was recessed, the chance of an injury was not very great. A penalty of $60.00 is appropriate. 

8. On October 26, 2005, Inspector Dye issued Citation No. 6291572 alleging a violation 

of section 56.12004. (Ex. G-23). The citation alleges that the 480 volt overhead power cable for 

the 547 belt had four separate areas where damage had been done to the outer jacket, exposing 

the inner wires to mechanical damage. The cable was about 12 feet in the air and the inspector 

30 FMSHRC 276 
believes the copper wire was showing in one location. The inspector determined that an injury 

was unlikely but that any injury could result in a fatal accident. She determined that the violation 

was not S&S and that the negligence was moderate. The safety standard provides, in part, that 

"electrical conductors exposed to mechanical damage shall be protected." The Secretary 

proposes a penalty of $60.00 for this citation. 

Inspector Dye testified that the outer jacket on the cable was damaged. (Tr. 386; Ex. G23c & 23d). The plant was shut down so that cited conditions could be corrected as they were 

cited, but the plant had been running the previous day. (Tr. 389). She believes that copper wire 

was showing and she testified that employees of Nelson Quarries agreed with her. (Tr. 390, 

454). The hazard created was that if a short developed as a result of this damage, anyone 

touching the metal frame of the conveyor could receive a fatal electric shock. (Tr. 391). Peres 

testified that he offered to take the cable down so that Inspector Dye could examine it more 

closely, but she said she could tell that bare wires were exposed. (Tr. 491). He stated that when 

he took the cable down to repair it, none of the copper wires were exposed. 

I reject the idea that the inspector could positively determine that copper wire was 

exposed in a small area of the suspended cable while she was standing on the ground. 

Nevertheless, the standard requires that electrical conductors exposed to mechanical damage be 

protected. Because the outer jacket protecting the electrical conductors had been damaged, the 

cable was required to be repaired. There was a potential for a short in the circuit because the 

damaged outer jacket would allow rain and snow to enter the cable. A penalty of $60.00 is 

appropriate. 

9. On October 26, 2005, Inspector Dye issued Citation No. 6291573 alleging a violation 

of section 47.41(a). (Ex. G-24). The citation alleges that the large diesel storage tank was not 

labeled for its contents so that employees would know what the tank contained. The inspector 

determined that an injury was unlikely but that any injury would result in a disabling injury. She 

determined that the violation was not S&S and that the negligence was moderate. The safety 

standard provides that a mine "operator must ensure that each container of a hazardous chemical 

has a label ... with the appropriate information." The Secretary proposes a penalty of $60.00 for 

this citation. 

Inspector Dye testified that a container is any "bag, barrel, bottle ... storage tank, or the 

like." (Tr. 392). She said that fuel tanks are included in this definition unless the tank is on 

mobile equipment. The cited tank was next to the parts trailer and it held about 7,500 to 8,000 

gallons. (Tr. 394). The tank supplied fuel to the plant. Diesel fuel is a hazardous chemical 

because it can have adversely affect a person's health. The MSDS for diesel fuel states that it is 

hazardous. (Tr. 397-98 ; Ex. G-24c). She believes that the health hazards could lead to "longterm damage." Id. 

The Secretary established a non-S&S violation. This standard is important so that anyone 

on the property will know what is stored there without have to think about it. This provision is 

30 FMSHRC 277 
especially important for emergency responders who have never been to the plant. (Tr. 801-02). 

The cited standard has only been applied to small quarries relatively recently so I have reduced 

the negligence. I find that A penalty of $40.00 is appropriate. 

10. On October 26, 2005, Inspector Dye issued Citation No. 6291580 alleging a violation 

of section 56.4501. (Ex. G-25). The citation alleges that there was no valve on the bottom of 

the 500 gallon diesel fuel tank on the Spokane crusher to stop the flow of fuel at the source. The 

inspector determined that an injury was unlikely but that it could lead to a fatal accident. She 

determined that the violation was not S&S and that the negligence was moderate. The safety 

standard provides that "fuel lines shall be equipped with valves capable of stopping the flow of 

fuel at the source .... " The Secretary proposes a penalty of $60.00 for this citation. 

Inspector Dye testified that Nelson Quarries should have installed a valve to control the 

flow of fuel. (Tr. 399). There was no valve on the cited fuel line. The purpose of the standard 

is to allow the operator to shut off the tank if a leak develops. If the fuel keeps flowing, a fire 

hazard is presented which can result in a fatal accident. (Tr. 401-02). There was no berm around 

the tank to contain any leaking diesel fuel. 

I find that the Secretary established a violation. It is clear that there was no valve present. 

A penalty of $60.00 is appropriate. 

11. On October 26, 2005, Inspector Dye issued Citation No. 6291587 alleging a violation 

of section 56.610l(a). (Ex. G-26). The citation alleges that the area to the north and east of the 

cap storage magazine had dry grass and brush within nine feet of the magazine. The inspector 

determined that an injury was unlikely but that the violation could contribute to a fatal accident. 

She determined that the violation was not S&S and that the negligence was moderate. The safety 

standard provides that "areas surrounding storage facilities for explosive materials shall be clear 

of rubbish, brush, [and] dry grass ... for 25 feet in all directions .... " The Secretary proposes a 

penalty of $60.00 for this citation. 

The inspector testified that the cap magazine qualifies as "storage facility for explosive 

materials." (Tr. 403). The brush and grass was within nine feet of the magazine. (Tr. 404-05; 

Ex. G-26c, 26d & 26e). If a fire were to start in the brush or grass, the flames could get into the 

magazine through the air vents and cause an explosion. (Tr. 406). Peres testified that most of 

the growth cited by Inspector Dye was green, but he does not deny that dry grass was present. 

(Tr. 493, 522; Ex. G-26). 

This citation is affirmed as written. Although some of the brush was green, it is beyond 

dispute that brush and dry grass was present within 25 feet of the magazine. A penalty of $60.00 

is appropriate. 

12. On October 26, 2005, Inspector Dye issued Citation No. 6291588 alleging a violation 

of section 56.4101. (Ex. G-27). The citation alleges that the storage area for explosive materials 

30 FMSHRC 278 
did not have a sign warning against smoking or open flames. There was a sign identifying it as 

an explosive storage area. The inspector determined that an injury was unlikely but that any 

injury could be fatal. She determined that the violation was not S&S and that the negligence was 

moderate. The safety standard provides that "readily visible signs prohibiting smoking and open 

flames shall be posted where a fire or explosion hazard exists." The Secretary proposes a penalty 

of $60.00 for this citation. 

The inspector testified that an explosion hazard existed around the storage area. (Tr. 

407). There were two magazines, one for explosives and the other for ANFO (Ammonium 

Nitrate/Fuel Oil). She was concerned about a fire starting and entering the magazines. (Tr. 408). 

Kenneth Nelson testified that there used to be no smoking/open flames signs on magazines but 

that the Kansas State Fire Marshall ordered the signs removed in 1994 to be replaced with a sign 

with black letters on a white background that said, "Explosives. Keep Off." (Tr. 527). He stated 

that MSHA has inspected these magazines numerous times since then without issuing citations. 

He admitted that he may have been able to post both signs. (Tr. 528-29). Some of Nelson's 

employees smoke while at work. 

The safety standard is clear on its face. Although the plant must comply with state 

regulations, it could also have included a no smoking sign. Because of the actions of the Fire 

Marshall and the fact that previous MSHA inspections had not identified the violation, I reduce 

the negligence to low. A penalty of$40.00 is appropriate. 

13. On October 26, 2005, Inspector Dye issued Citation No. 6291590 alleging a violation 

of section 56.141 OO(b ). (Ex. G-28). The citation alleges that there were a number of defects 

affecting safety on Dresser haul truck No. 1008. The tether strap for the operator's door was 

missing. The inner door handle was missing. The glass on the door would not stay up exposing 

the operator to dust and noise. One of the tether straps for the operator's seat was broken off. 

The tail lights did not work. The inspector determined that an injury was reasonably likely and 

that any injury could be fatal. She determined that the violation was S&S and that the negligence 

was moderate. The safety standard 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." The Secretary proposes a penalty of $135.00 for this citation. 

Inspector Dye testified that the door tether keeps the door from opening all the way. 

Because there is no handrail on the walkway, the door is tethered to help keep the operator from 

falling when getting out of the haul truck. (Tr. 410). The truck is used to haul material from the 

pit to the plant. The tether straps are a safety feature because they keep the door from opening 

beyond the point where it should be opened. (Tr. 411-12, 460). The tether strap for the seat 

helps keeps the seat inside the cab of the truck. The haul truck sometimes travels over rough 

terrain and the seat tether helps keep the seat in place. Inspector Dye believes that the inside door 

handle is an important safety feature because the operator may need to exit the truck quickly in 

an emergency. (Tr. 415-16). She was also concerned that the truck operator was being 

constantly exposed to noise and dust because the door window would not stay up. She admitted 

30 FMSHRC 279 
that MSHA's standards do not require that windows be installed on trucks. (Tr. 462-64). She 

also said that tail lights are important so that any vehicles behind the haul truck would know 

where it is and where it is going. It is often windy and dusty in Kansas, which obscures the 

vision of equipment operators. (Tr. 413-14). Although Inspector Dye admitted that she did not 

know exactly how long these conditions existed on the truck, it was apparent that the conditions 

had existed for some time. (Tr. 418-19). 

Inspector Dye testified that, given the number of defective conditions on the truck, it was 

reasonably likely that the violation would contribute to a fatal injury. (Tr. 419). The truck 

operator could fall from the cab, he could be trapped inside the cab in the event of an accident, 

and he could be thrown around inside the cab in the event another vehicle collided with the truck. 

For this reason, she determined that the violation was S&S. 

Mr. Peres testified that the leather strap for the door on the haul truck is not a safety item. 

(Tr. 494). It is there to keep the door from slamming back against the side of the cab and the bed. 

The company had ordered a new handle for the door but it had not yet arrived. He did not 

explain this to the MSHA inspector. (Tr. 521). 

For the reasons set forth in Inspector Dye's testimony, I affirm this citation. Taken 

together, the safety defects cited by the inspector created a significant hazard to the truck 

operator. I credit the inspector's conclusion that these defects were not corrected in a timely 

manner. I also find that the violation was S&S because it was reasonably likely that the hazard 

contributed to by the violation would result in a serious injury. A penalty of$135.00 is 

appropriate. 

14. On October 26, 2005, Inspector Dye issued Citation No. 6291594 alleging a violation 

of section 56.14100(b). (Ex. G-29). The citation alleges that there was only one operable backup 

light and no operating tail lights on the Euclid haul truck No. 1017. The inspector determined 

that an injury was unlikely but that any injury could be permanently disabling. She determined 

that the violation was not S&S and that the negligence was moderate. The Secretary proposes a 

penalty of $60.00 for this citation. 

The inspector testified that tail lights are necessary in dusty environments and in the dark 

so that the truck can be seen from behind. (Tr. 423-24). In addition, when the back up light 

comes on, anyone behind the truck will know that the truck will be backing up. The truck backs 

up when it dumps at the crusher. 

I find that inadequate backup lights and tail lights are defects that affect safety. I also find 

that these defects were not corrected in a timely manner. A penalty of $60.00 is appropriate. 

15. On October 26, 2005, Inspector Dye issued Citation No. 6291591 alleging a violation 

of section 56.14132( a). {Ex. G-30). The citation alleges that the backup alarm on the Dresser 

haul truck No. 1008 was not working. The truck is regularly used to haul material from the pit to 

30 FMSHRC 280 
the crusher. The inspector determined that an injury was reasonably likely and that any injury 

could be fatal. She determined that the violation was S&S and that the negligence was moderate. 

The safety standard provides that "manually operated horns or other audible warning devices 

provided on self-propelled mobile equipment as a safety device shall be maintained in a 

functional condition." The Secretary proposes a penalty of $135.00 for this citation. 

The inspector testified that a backup alarm is considered to be an audible warning device 

as that term is used in the safety standard. (Tr. 425). A backup alarm lets people in the area 

know that the vehicle will be backing up. Nelson Quarries did not offer any explanation for this 

condition. She believes that it was reasonably likely that someone would be fatally injured if the 

cited condition were not corrected. (Tr. 427-28). 

Peres testified that pedestrians are never on the ground while haul trucks are operating. 

(Tr. 495-96). In addition, over-the-road trucks are never in the area where the haul truck 

operates. Only one haul truck is operating at any given time. 

It is clear that a backup alarm is a safety device and that it was not maintained in a 

functional condition. Many people have been killed or injured at mines because of faulty backup 

alarms. Because there are no pedestrians at this mine while haul trucks are operating, I find that 

the violation was not S&S. A penalty of $60.00 is appropriate. 

16. Prior to the hearing, the Secretary agreed to vacate Citation No. 6291581 and Nelson 

Quarries agreed to withdraw it contest of Citation Nos. 6291574, 6291582, and 6291585. 

E. CENT 2006-201-M, Plant 5. 

1. On October 26, 2005, Inspector Dye issued Citation No. 6291583 alleging a violation 

of section 56.14107(a). (Ex. G-31). The citation alleges that the head pulley on the No. 546 

conveyor was not adequately guarded. The head pulley was guarded on the side but not on the 

front. The inspector determined that an injury was reasonably likely and that any injury was 

likely to be permanently disabling. She determined that the violation was S&S and that the 

negligence was moderate. The Secretary proposes a penalty of $72.00 for this citation. 

Inspector Dye testified that there is a platform that the operator uses for taking grab 

samples of the material coming off the belt. (Tr. 532). Employees reach over the railing with a 

bucket or some other vessel to take a sample of the product. She believes that someone could be 

severely injured iftheir clothing got caught in the moving pulley as he was trying to get a product 

sample. (Tr. 534). Inspector Dye designated the citation as S&S because she believes that a 

serious injury is reasonably likely assuming continued normal mining operations. (Tr. 535-36). 

The head pulley was partially guarded. (Tr. 568-69). She admitted that ifthe guard were 

extended, the mine operator would not be able to obtain grab samples at that location. (Tr. 570-

71 ). 

30 FMSHRC 281 
Mr. Peres testified that the existing guard extended an inch or two in front of the head 

pulley. (Tr. 588). The existing mesh guard was about the height of a person's arm pit. The 

pinch point was behind the mesh guard. A grab sample was taken about once a week. (Tr. 589). 

I affirmed this citation at the hearing. (Tr. 802-04). I held that the condition created a 

hazard because grab samples were taken at this location. A person's jacket or clothing could 

easily become entangled in the moving machine parts. A penalty of $70.00 is appropriate. 

2. On October 26, 2005, Inspector Dye issued Citation No. 6291586 alleging a violation 

of section 56.9300(a). (Ex. G-32). The citation alleges that the approaches to the elevated scale 

were not bermed to prevent over-travel of mobile equipment. The inspector determined that an 

injury was unlikely but that any injury was likely to be permanently disabling. She determined 

that the violation was not S&S and that the negligence was moderate. The safety standard 

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." The Secretary proposes a penalty of$60.00 for this citation. 

Inspector Dye stated that the scale was used to weigh trucks entering and leaving the 

property. (Tr. 537). The cited roadway is mostly used by over-the-road trucks. She testified that 

the west approach was 25 feet long and had a drop-off of three feet on both sides. (Tr. 539). The 

east approach had a drop-off of three and a half feet on the south and about six to seven feet on 

the north. (Tr. 539, 575). There were no berms or guardrails present. (Tr. 540). She was 

concerned that if a truck were to go over the edge, its load could shift and the vehicle could tum 

over. (Tr. 542). 

Peres testified that the drop-offs on both sides of the road through the scale were sloped. 

(Tr. 590). He further disagreed with the inspector and said that the drop-off was not six or seven 

feet on one side. (Tr. 592). The slope along the side of the road was not steep enough to cause a 

truck to overturn of it went off the road. (Tr. 594). Truck drivers are instructed to not exceed 

five miles per hour over the scale because the scale can be damaged by higher speeds. (Tr. 593-

94 ). 

I find that the Secretary established a violation. I credit the testimony of Inspector Dye. I 

find that the violation was not serious and the operator's negligence was low because the hazard 

was not obvious and drivers proceed over the scale house at a low rate of speed. A penalty of 

$40.00 is appropriate. 

3. On October 26, 2005, Inspector Dye issued Citation No. 6291589 alleging a violation 

of section 56.14101(a)(2). (Ex. G-33). The citation alleges that the park brake on the Dresser 

haul truck No. 1008 would not hold the truck when it was tested on a slight downgrade. The 

inspector determined that an injury was unlikely but that any injury was likely to be fatal. She 

determined that the violation was not S&S and that the negligence was low. The safety standard 

30 FMSHRC 282 
provides, in part, that "parking brakes shall be capable of holding the equipment with its typical 

load on the maximum grade it travels." The Secretary proposes a penalty of $60.00. 

Inspector Dye testified that the truck was equipped with a parking brake. {Tr. 546). The 

parking brake worked when the key for the haul truck was in the on position but the parking 

brake would not work if the key was in the off position. {Tr. 54 7). This condition violated the 

safety standard because fatal accidents have occurred because of defective parking brakes. {Tr. 

552). The truck cannot be operated without the key. {Tr. 578). 

Mr. Peres testified that when the driver does his preshift examination of the truck, it is 

parked against an embankment so it cannot roll. (Tr. 595). The park brake cannot be checked 

without moving the vehicle, so the truck is running when the check is performed. 

I find that the Secretary established a violation but that the operator's negligence was low. 

When the truck driver performed the preshift examination of the parking brake, the truck was 

running. As a consequence, it appeared that the parking brake was properly functioning. A 

penalty of$40.00 is appropriate. 

4. On October 26, 2005, Inspector Dye issued Citation No. 6291595 under section 

104(d)(l) of the Mine Act alleging a violation of section 56.14101(a)(2). (Ex. G-34). The 

citation alleges that the park brake on the Euclid haul truck No. 1017 did not hold the truck when 

it was tested on a slight grade. The citation states that pre-shift reports establish that the park 

brake had not been working since September 29, 2005, and that the foreman knew of this defect. 

The inspector determined that an injury was reasonably likely and that any injury was likely to be 

fatal. She determined that the violation was S&S and that the negligence was high. The 

Secretary proposes a penalty of $625. 00 for this citation. 

Inspector Dye testified that the preshift checklist filled out by the truck operator shows 

that the park brake had not been working since late September. (Tr. 554-55). Three different 

truck operators reported the problem on the preshift checklist. The foreman, Ronnie Head, told 

the inspector that he knew that the park brake was not working and that he had called the 

mechanic to repair the brake. Apparently, the mechanic told him that the park brake did not need 

to work. (Tr. 555, 557). Mr. Head told the inspector that he advised Mr. Peres of this problem. 

(Tr. 55T-58). Peres told the inspector that he did not know that the park brake was not working 

properly. (Tr. 558). This truck was used while the park brake was inoperative and it was not 

taken out of service. (Tr. 561 ). It was possible that the truck was idle for long periods of time. 

(Tr. 582). The service brakes were working. 

The inspector designated the citation as S&S because the company had been using the 

truck in a defective condition for almost a month. (Tr. 562). The truck has to travel over grades 

of up to nine to twelve percent. She tested the brake with the bed empty, but it often travels with 

a load of rock. With other trucks around, it would be impossible to hold the truck on a steep 

grade. She believed that it was reasonably likely that the violation would contribute to an injury 

30 FMSHRC 283 
of a reasonably serious nature. In addition, she noted that there had been an accident at another 

plant of Nelson Quarries in 2005 in which the equipment operator lost control of his vehicle and 

his service brakes were not operating. 

Mr. Peres testified that this truck was used on an intermittent basis. (Tr. 599). Mr. Head 

told him, after this inspection, that he had called a mechanic to fix the problem after it was noted. 

(Tr. 600). He stated that he talks to the foremen at the plant about any preshift problems, but he 

does not usually examine the records that are kept in the trucks. (Tr. 603). He further testified 

that he first learned that the park break was not working moments before MSHA arrived to 

perform its inspection. (Tr. 610). Mr. Head had known about this problem for about 30 days. 

Peres stated that he immediately tagged the truck out of service. 

In its brief, Nelson Quarries argues that this citation should not have been issued under 

section 104(d)(l). The inspector issued the unwarrantable failure citation based on statements of 

Mr. Head, who was a lead man at the plant. Mr. Head was not an agent of Nelson Quarries 

because he was paid on an hourly basis and he did not have management authority. He was "able 

to contact" Mr. Peres "any time anything came up" that "needed management input." (N.Q. Br. 

12). He did not have the authority to hire, fire, discipline, or assign equipment to miners." Id. 

Mr. Head did not follow company procedures when he failed to notify Peres that the park brake 

did not work. Nelson Quarries seeks to have this citation modified to a non-S&S, low negligence 

section 104(a) citation. 

In response, the Secretary contends that it is not disputed that the park brake was not 

functioning and that this condition had been consistently reported on prior pre-shift reports. She 

notes that the company acknowledges that Mr. Head had the responsibility to report the defect to 

appropriate officials. It is undisputed that Mr. Head was responsible for conducting workplace 

examinations at Plant 5. Dye testified that Mr. Head directed the workforce while she was at the 

plant for the inspection and that he ordered employees to correct conditions that had been cited 

during the inspection. Dye also testified that Mr. Head told her that he had received supervisory 

training from the company under Part 46 of the Secretary's regulations. (Tr. 560-61). As stated 

above, the Secretary also noted that all of the forms submitted by the company to MSHA 

indicated that Mr. Head was the foreman in charge of the plant. The Secretary also argues that 

Mr. Peres had knowledge that the park brake was not working well before the inspection. 

I find that the violation was S&S. The condition had existed for almost a month and it 

was reasonably likely that the hazard contributed to by the violation would lead to a serious 

accident. I credit the testimony of Inspector Dye in this regard. 

I also find that the violation was the result of the operator's unwarrantable failure to 

comply with the standard. As with Mr. Andres in Citation No. 6291250, discussed above, I find 

that Mr. Head functioned as an agent of Nelson Quarries for the purposes of the Mine Act. He 

presented himself to Inspector Dye as the company's representative and the company had given 

him the title "foreman." He conducted the workplace examinations and he had the authority to 

30 FMSHRC 284 
direct the workforce at the plant. The only management function he did not possess was the 

ability to hire, fire, and discipline employees but he made recommendations as the need arose. 

Although Mr. Head reported to Mr. Peres, it is clear that Mr. Head was the onsite manager when 

Mr. Peres was not at the plant. As with Mr. Andres, he had the authority to assign job duties, 

direct the use of equipment, represent the company during safety and health inspections, and 

direct the abatement of citations. He was aware that the park brake on the truck did not work and 

he permitted its continued operation. He. made several attempts to get the company's mechanic 

to come to the plant to fix the brakes without success. Inspector Dye testified that Mr. Head told 

· her that he advised Mr. Peres that the park brake was not working. (Tr. 557). 

The violative condition existed for over a month, at least one of the operator's agents 

knew of the condition, and the condition posed a significant risk to employees. A penalty of 

$625.00 is appropriate for this citation. 

F. CENT 2006-202-M, Plant 1. 

1. On November 16, 2005, Inspector Dye issued Citation No. 6291636 alleging a 

violation of section 47.41(a). (Ex. G-35). The citation alleges that the diesel tank by the oil 

storage trailer was not labeled for its contents to ensure that everyone knew what chemical was 

present. Inspector Dye determined that an injury was unlikely but that any injury could 

reasonably be expected to be permanently disabling. She determined that the violation was not 

S&S and that the negligence was moderate. The Secretary proposes a penalty of$375.00 for this 

citation. 

Inspector Dye testified that when she arrived at Plant 1, the gate was locked. (Tr. 615). 

The plant had not produced for a few months. After a mechanic arrived and unlocked the gate, 

she conducted her inspection. She testified that the cited diesel tank was large. (Ex. 35c). There 

was diesel spillage on the ground near the nozzle. {Tr. 617). The words "Flammable No 

Smoking" was written on the tank in large letters. All employees knew that the tank was for the 

storage of diesel fuel. (Tr. 630). 

Mr. Peres testified that Plant No. 1 was not operating at the time the citation was issued. 

(Tr. 640). The pit was full of water and there were only a few pieces of mobile equipment 

present. There were no haul trucks present to haul material to the crusher. 

For the reasons set forth above with respect to Citation No. 6291573, I affirm the citation. 

Although the plant was not operating at this time, the company had not notified MSHA that the 

plant was closed. I am reducing the negligence to low because the plant was not operating and 

this relatively new safety standard was only now being applied to the company's quarries. A 

penalty of $40.00 is appropriate. 

2. On November 16, 2005, Inspector Dye issued Citation No. 6291639 alleging a 

violation of section 47.41(a). (Ex. G-36). The citation alleges that the diesel tank inside the 

30 FMSHRC 285 
electrical trailer was not labeled for its contents to ensure that everyone knew what chemical was 

present. Inspector Dye determined that an injury was unlikely but that any injury could 

reasonably be expected to be permanently disabling. She determined that the violation was not 

S&S and that the negligence was moderate. The Secretary proposes a penalty of $375.00 for this 

citation. 

Inspector Dye testified that the tank supplied fuel to the generator. (Tr. 621). She had 

previously observed at least one diesel tank at a Nelson Quarries plant that was properly labeled. 

(Tr. 622-23). She did not check to see if there was any fuel in the tank. (Tr. 632). Employees 

knew that the tank was for the storage of diesel fuel. (Tr. 633). Peres testified that the tank was 

empty and it was not plumbed in. (Tr. 642, 652). The 1,000 gallon diesel tank for the generator 

was outside. (Tr. 643). 

If the tank was empty and not plumbed in, it need not be labeled for its contents. Given 

that the inspector did not check to see if there was fuel in the tank, I credit the testimony of Mr. 

Peres and vacate this citation. 

3. On November 16, 2005, Inspector Dye issued Citation No. 6291638 alleging a 

violation of section 56.4104(b). (Ex. G-37). The citation alleges that a five gallon bucket 

containing used oil and rags was sitting inside the oil storage trailer. Inspector Dye determined 

that an injury was unlikely but that any injury would likely be fatal. She determined that the 

violation was not S&S and that the negligence was moderate. The safety standard provides that 

"waste or rags containing flammable or combustible material that could create a fire hazard shall 

be placed in covered metal containers or other equivalent containers with flame containment 

characteristics." The Secretary proposes a penalty of $614.00 for this citation. 

Inspector Dye testified that she saw the oil and rags in an ordinary plastic bucket. (Tr. 

625). If there were an ignition source, a fire could be started. She did not observe any ignition 

sources. A fire extinguisher was in the area. 

I find that the Secretary established a violation. Because the violation was not serious, a 

penalty of $60.00 is appropriate. 

4. On November 16, 2005, Inspector Dye issued Citation No. 6291641 alleging a 

violation of section 56.14107( a). (Ex. G-38). The citation alleges that the alternator and fan vbelts were not guarded on the generator in the electrical trailer. Inspector Dye determined that an 

injury was unlikely but that any injury would likely be permanently disabling. She determined 

that the violation was not S&S and that the negligence was moderate. The Secretary proposes a 

penalty of $375.00 for this citation. · 

The inspector testified that the cited belts were not guarded. (Tr. 628; Ex. G-38c). The 

fan blades were properly guarded. Someone might be in the area to check any fluids or to check 

the belts. The area is narrow. If someone were to slip, he could get his hand caught in the 

30 FMSHRC 286 
moving machine parts. (Tr. 629). The dipstick was not near the unguarded v-belts. Peres 

testified that it would be very difficult to come into contact with the cited belts. (Tr. 644). The 

generator is controlled from a computer panel at the back of the trailer. He believes that the belts 

were guarded by location. 

At the hearing, I upheld the citation because the cited area was not guarded. (Tr. 804-05). 

The belts for the fan were required to be guarded. Because the violation was not S&S, a penalty 

of $60.00 is appropriate. 

5. Prior to the hearing, the Secretary agreed to vacate Citation No. 6291640. 

G. CENT 2006-203-M, Plant 2. 

1. On October 5, 2005, Inspector James W. Timmons issued Citation No. 6321288 

under section 104(d)(l) of the Mine Act alleging a violation of section 56.14100(c). (Ex. G-42). 

The citation alleges that on September 23, 2005, foreman J. Benedict instructed T. Larson to 

move a lime pile with the IH 530 front-end loader. The service brakes on the loader were not 

functional and when the engine failed the loader rolled down a ramp, hit the guard rail at the 

creek crossing and dropped about six feet on its side into the creek. The citation alleges that Mr. 

Benedict knew that the brakes were not working and that Mr. Clift had told him to take the 

loader out of service. The inspector determined that an injury was highly likely and that any 

injury was likely to be fatal. He determined that the violation was S&S and that the negligence 

was high. The safety standard provides that "when defects make continued operation hazardous 

to persons, the defective items including self-propelled mobile equipment shall be taken out of 

service and placed in a designated area ... or [tagged out]." The Secretary proposes a penalty of 

$1,500.00 for this citation. 

Inspector Timmons testified that he inspected Plant 2 because of a hazard complaint that 

was filed with MSHA. (Tr. 660; Ex. G-39). The hazard complaint stated that there had been a 

loader accident at the mine on September 23. Kenneth Nelson handed the inspector its accident 

investigation report after he showed him the hazard complaint. (Ex. G-40). This accident report 

listed Jeff Benedict as the foreman. Apparently, Mr. Larson raised the loader's bucket into the 

air while he was on the ramp, the motor failed, and the loader ran down the ramp, over the 

guardrail, and into a dry creek bed because the service brakes were not working. Larson was 

taken to the hospital and was diagnosed with severe bruises. (Tr. 665). The company's accident 

report states that Benedict ordered Larson to operate the loader. As stated above, the mine 

superintendent had ordered Benedict to take this loader out of service prior to the accident. 

Richard Andres, a company mechanic, told Inspector Timmons that there was no brake fluid in 

the brake fluid reservoir, the main air tank was full of water, and there was an air leak in the 

compressor. (Tr. 669). Larson had worked as a haul truck driver at the quarry for about 30 days. 

(Tr. 676). 

30 FMSHRC 287 
For the reasons set forth above, Inspector Timmons testified that the violation was S&S. 

{Tr. 676-78). He designated the violation as an unwarrantable failure because the company knew 

that the brakes were defective and, through Mr. Benedict, allowed it to be operated by an 

inexperienced loader operator. {Tr. 678-80). Mr. Benedict told Inspector Timmons that he was 

the foreman at the plant. {Tr. 721 ). 

Kenneth Nelson testified that he prepared the company's accident report. {Tr. 825; Ex. 

G-40). Jeff Benedict had given Larson some informal training on the loader prior to the accident. 

{Tr. 828). Foreman Patrick Clift testified that he was not aware that Lawson was going to 

operate the loader on the day of the accident. {Tr. 839). Jeff Benedict, in the presence of Clift, 

asked the mechanic, Jason Schmidt, if he had time to look at the loader because the brakes on the 

loader were not working properly. Schmidt had to work on some equipment at another plant so 

Clift told Benedict not to use the loader. {Tr. 840-41, 872-74). When Clift heard about the 

accident he was surprised Larson had been operating the loader because he had told Benedict not 

to use it. Clift had not given Benedict authority to assign Larson to the loader. {Tr. 842). Larson 

had not been task trained on the loader. {Tr. 876). Clift testified that he was the foreman of 

Plants 2 and 4 at the time of the accident. He is always available to employees at the plants on 

the company's cell phone, which he carries at all times. 

Nelson Quarries argues that Mr. Benedict did not meet the Commission's multi-factor 

test used to determine whether someone is an agent of a mine operator. Its arguments are similar 

to the arguments it made concerning Messrs. Andres and Head. Benedict was an hourly 

employee who could not hire, fire, discipline or assign equipment to employees. Mr. Nelson 

states that he was not well versed on the legal implications of using the term foreman for a 

person who functions as a lead man. In addition, Mr. Clift testified that he specifically instructed 

Benedict to remove the loader from service and keep it parked until the brakes could be repaired 

by the mechanic. Thus, Nelson Quarries complied with the regulation but the lead man, acting 

on his own, ignored the instructions of his supervisor and placed the loader into service. As a 

consequence, Mr. Benedict is responsible for the accident, not the company. The company did 

all that it could to prevent the accident. It asks that the citation be modified to a section 104(a) 

citation with low negligence. 

The Secretary makes the same arguments that she did with respect to the previous 

unwarrantable failure citations. She notes that Mr. Benedict represented himself as a 

representative of management during the inspection and no person in a more senior position with 

Nelson Quarries disputed Benedict's authority with MSHA inspectors. Indeed, the company had 

previously designated Benedict as the person in charge on the legal identity form it filed with 

MSHA. In the accident report drafted by Kenneth Nelson, Mr. Benedict is identified as the 

foreman who "had [Larson] run the loader to move the lime pile on the north side of the plant to 

the stockpile." (Ex. G-40). Regardless of the title used for Mr. Benedict, it is clear that he told 

Larson to operate the loader that day, which indicates that Benedict had the authority to direct the 

workforce. 

30 FMSHRC 288 
I find that Benedict was the agent of Nelson Quarries when he directed Larson to operate 

the front-end loader on the day of the accident. Benedict had been delegated authority to direct 

the workforce. There is no dispute that the safety standard was violated. I find that the Secretary 

established that the violation was S&S. Unwarrantable failure is characterized by "intentional 

misconduct," "reckless disregard," "indifference," or "a serious lack of reasonable care." 

Although Benedict functioned as the company's agent, it is clear that Benedict's supervisor told 

him not to use the loader. I credit the testimony of Mr. Clift that he was with company mechanic 

Schmidt, who was at the quarry to work on another piece of equipment the day before the 

accident, when Benedict came up to tell them that he had "parked the loader because the brakes 

had not been working." {Tr. 840, 873-74). Because Schmidt did not have time to work on the 

loader at that time, Clift instructed Benedict not to use the loader until Schmidt had a chance to 

work on it. Clift was an agent of Nelson Quarries too, of course. Nevertheless, Nelson Quarries, 

acting through Mr. Benedict, directed Larson to operate the subject loader. This action 

demonstrated a serious lack of reasonable care. As a consequence, I find that the Secretary 

established that the violation was a result of the company's unwarrantable failure to comply with 

the safety standard. 

Given that the company's agent disregarded the instruction of his supervisor, I find that 

its negligence was not as high as it would have otherwise been. Benedict was disciplined for 

ordering Larson to operate the loader. (Tr. 860). A penalty of $800.00 is appropriate. 

2. On February 24, 2005, Inspector Timmons issued Citation No. 6290517 alleging a 

violation of section 56.14109. (Ex. G-43). The citation alleges that there was no guard along the 

impact belt and that the belt rollers were exposed next to the stairs to the crusher cab. Inspector 

Timmons determined that an injury was reasonably likely and that any injury would likely be 

permanently disabling. He determined that the violation was S&S and that the negligence was 

moderate. The safety standard provides, in part, that unguarded conveyors next to travelways 

shall be equipped with a stop cord or with railings that are positioned to prevent persons from 

falling against the conveyor. The Secretary proposes a penalty of $177 .00 for this citation. 

Inspector Timmons testified that stairs leading to the cab for the crusher were right next 

to the conveyor. The railing on the stairs only guarded part of the conveyor. {Tr. 682-86). A 

railing must be positioned to prevent a person from falling onto or against the conveyor. {Tr. 

723). There was no stop cord present and there was nothing present to prevent accidental contact 

with the conveyor. He determined that the violation was S&S because the crusher operator or 

anyone else entering or exiting the cab for the crusher was exposed to the hazard. If anyone were 

to trip or stumble and fall into the conveyor structure, they would be seriously injured. (Tr. 687-

88). 

Mr. Clift testified that the stairway into the crusher cab had been in the same location 

from the beginning. The same configuration is used whenever the plant is moved to a new 

location. (Tr. 845). The plant has been inspected by MSHA many times and the condition cited 

by Inspector Timmons had never been cited in the past. 

30 FMSHRC 289 
Section 56.14109 contains two requirements which must be satisfied before the standard 

applies. The belt must be next to a "travelway" and the belt must be "unguarded." A travelway 

is defined in 56.14000 as a "passage, walk, or way regularly used or designated for persons to go 

from one place to another." The stairway to the crusher cab was immediately adjacent to the belt. 

The handrails for these stairs acted as a railing when a miner was on the stairs. In approaching 

this stairway, a miner would need to momentarily walk alongside a small portion of the impact 

belt to reach the first step. (Ex. G-43d). As a consequence, I find that the belt was next to the 

travelway at that location. In this instance, it was clear that the impact belt was unguarded at the 

bottom of the stairway to the crusher cab. (Compare, Nolichuckey Sand Company, Inc., 22 

FMSHRC 1057 (Sept. 2000)). The belt was at a level that posed a hazard to miners. There was 

no rail or stop cord for the belt. There were rocks and tripping hazards in the area. There was 

nothing to keep miners from falling into the moving belt. 

I find that the Secretary established an S&S violation of the safety standard. Miners walk 

up into the crusher cab on a regular basis while the belt is running. The tripping and stumbling 

hazards were obvious. A miner's arm or clothing could become entangled in the belt rollers and 

pull the miner into the pinch point. (See, for example, Asphalt Paving, 27 FMSHRC 123 (Feb. 

2005) (ALJ)). It is reasonably likely that this violation would contribute to an injury of a 

reasonably serious nature. 

Nelson Quarries argues that the citation should be vacated because the plant has been 

inspected by MSHA many times and the condition cited by Inspector Timmons had never been 

cited in the past. I reject this argument. The standard is clear on its face as it applies to the facts 

in this case. The cited conveyor belt was not guarded where it was next to a travelway. As a 

consequence it was required to be equipped with a stop cord or railings. As a consequence, the 

reasonable prudent test does not apply. In addition, the Secretary has published notices 

informing the regulated community of its interpretation of the standard. In its Guide to 

Equipment Guarding, MSHA advised the mining community that conveyors located at the level 

of a miner's torso must be provided with a guard or stop cord. (Tr. 683; Ex. G-6c, pp. 12-13). 

The fact that the condition had never been cited does not change that fact. A penalty of$100.00 

is appropriate for this violation. 

3. On February 24, 2005, Inspector Timmons issued Citation No. 6290516 alleging a 

violation of section 56.14107(a). (Ex. G-44). The citation alleges that there was no guard on the 

back side of the V -belt and pulley for the surge hopper. Inspector Timmons determined that an 

injury was unlikely but that any injury would likely be permanently disabling. He determined 

that the violation was not S&S and that the negligence was moderate. The Secretary proposes a 

penalty of $60.00 for this,citation. 

Inspector Timmons testified that the exposed opening was about five feet above the 

ground. (Tr. 688-92). Although the surge hopper was not in operation at the time of the 

inspection it had been operating earlier in the week and would always be operating when the 

30 FMSHRC 290 
crusher was in use. The "oil filling spout or plug" was near the unguarded area. (Tr. 691). He 

determined that the violation was not S&S. 

Clift testified that the cited area has never been guarded by the company and has never 

been cited. (Tr. 846). It has been in this condition for many years. There are no grease fittings 

near the moving parts. (Tr. 848). The oil plug mentioned by the inspector cannot be opened 

while the equipment is operating because oil would fly out all over the miner who opened it. Id. 

I find that the Secretary established a violation. The unguarded opening presents an 

obvious hazard. I take into consideration the fact that the area had never been cited when 

considering the negligence criterion. Although MSHA may have never cited this particular Vbelt and pulley, the agency has consistently required such belts and pulleys to be guarded. It 

clearly fits within the scope of the safety standard. I find that the operator's negligence and the 

gravity to be low. A penalty of $40.00 is appropriate. 

4. On February 24, 2005, Inspector Timmons issued Citation No. 6290520 alleging a 

violation of section 56.14132(a). (Ex. G-45). The citation alleges that the manually operated 

horn on the Caterpillar haul truck was not working. Inspector Timmons determined that an 

injury was unlikely but that any injury would likely result in lost workdays or restricted duty. He 

determined that the violation was not S&S and that the negligence was moderate. The Secretary 

proposes a penalty of $60.00 for this citation. 

Inspector Timmons testified that the cited truck would be used when the plant was in 

operation. (Tr. 693). The horn would be needed to give a warning. The truck would be used to 

haul material from the pit to the plant. (Tr. 695). The plant was not operating at the time of the 

inspection because it was being set up. (Tr. 728-29). At the time of the inspection, only part of 

the plant was operating. Clift testified that he truck was only used occasionally. (Tr. 850). 

The Secretary established a violation. The gravity was low because the truck was only 

used occasionally and the negligence was low because the plant was being set up in a new 

location. A penalty of$40.00 is appropriate. 

5. On February 24, 2005, Inspector Timmons issued Citation No. 6290521 alleging a 

violation of section 56.141 OO(b). (Ex. G-46). The citation alleges that the outriggers on the 

Drott-2500 crane were not maintained in a proper condition in that the electrical system in the 

cab was not functional. A person must craw 1 under the crane when it is running to manually 

push the valves that operate the outriggers. Inspector Timmons determined that an injury was 

unlikely but that any injury would likely be permanently disabling. He determined that the 

violation was not S&S and that the negligence was moderate. The Secretzj proposes a penalty 

of $60.00 for this citation. 

Inspector Timmons testified that the outriggers could not be extended from the cab of the 

crane. (Tr. 697). The crane had last been used two days before the citation was written. The 

30 FMSHRC 291 
outriggers must be extended before the crane can be used. Going under the crane to extend the 

outriggers while the crane is turned on creates a hazard in the event the crane were to roll. (Tr. 

699-703, 739). The inspector did not see any wheel chocks in the area. He considered the cited 

condition to be a defect that affected safety and it was not corrected in a timely manner. The 

parking brakes and service brakes on the crane were working. (Tr. 732). 

Clift testified that the crane was not used very frequently. It was used for heavy work, 

such as setting a secondary crusher. (Tr. 851 ). The operator was instructed to never leave the 

cab of the crane while the outriggers were being extended. Two men would be on the ground, 

one under the crane to operate the hydraulics and another at the corner, in plain view of the 

operator in the cab, to direct the work. Clift said that he was always present when the crane was 

used. {Tr. 853). 

The Secretary established a violation. The operator was aware of this safety defect. The 

fact that the operator used other methods to ensure the safety of miners mitigates the gravity to a 

certain degree. A penalty of$60.00 is appropriate. 

6. On February 24, 2005, Inspector Timmons issued Citation No. 6290522 alleging a 

violation of section 56.14132{a). {Ex. G-47). The citation alleges that backup alarm on the 

Michigan L-320 front-end loader was not working. Inspector Timmons determined that an injury 

was unlikely but that any injury would likely result in lost workdays or restricted duty. He 

determined that the violation was not S&S and that the negligence was moderate. The.Secretary 

proposes a penalty of $60.00 for this citation. 

Inspector Timmons testified that the loader was equipped with a backup alarm but it was 

not working. (Tr. 705-07). When he asked an employee to back up the loader, the alarm did not 

work. The loader was used on a regular basis at the plant to load haul trucks at the pit and also to 

load customers' trucks. The loader had an obstructed view to the rear. 

Clift testified that this loader is never used to load customer trucks because it is too big. 

(Tr. 854). In addition, the loader is rarely used and is subjected to a pre-shift examination before 

it is used. Another similar loader was used more frequently. (Tr. 855). 

This loader was parked and ready for use. It would have been subjected to a pre-shift 

examination before it was used. I credit Mr. Clift's testimony that it was never used to load 

customer trucks and that it is not used as often as the other loader. The backup alarm was not 

maintained in a functional condition. I find that the Secretary established a violation but that the 

gravity and negligence was low. A penalty of $40.00 is appropriate. 

7. On February 24, 2005, Inspector Timmons issued Citation No. 6290523 alleging a 

violation of section 56.141 OO(b ). (Ex. G-48). The citation alleges that the windshield wipers on 

the Michigan L320 front-end loader were not working. Inspector Timmons determined that an 

injury was unlikely but that any injury would result in lost workdays or restricted duty. He 

30 FMSHRC 292 
determined that the violation was not S&S and that the negligence was moderate. The Secretary 

proposes a penalty of $60.00 for this citation. 

Inspector Timmons testified that the wipers were not working on the loader. {Tr. 708-

11 ). He considers wipers to be safety equipment because in inclement weather and dusty 

conditions, wipers improve the visibility for the equipment operator. The condition was not 

corrected in a timely manner because the loader had been used with inoperable wipers. The 

operator's visibility would especially be impaired in fog, rain, and snow. This is the same loader 

cited above. Clift' s testimony with respect to this citation is the same. The loader had been 

parked for month. {Tr. 856). 

I affirm this citation but find that the gravity and negligence was low. A penalty of 

$40.00 is appropriate. 

8. On February 24, 2005, Inspector Timmons issued Citation No. 6290524 alleging a 

violation of section 56.6132(a)(4). (Ex. G-49). The citation alleges that the lid of the high 

explosives magazine had exposed steel on the inside because the wood liner was missing. High 

explosives were in the magazine. Inspector Timmons determined that an injury was unlikely but 

that any injury would likely be fatal. He determined that the violation was not S&S and that the 

negligence was moderate. The safety standard provides that magazines shall be "made of nonsparking material on the inside." The Secretary proposes a penalty of $60.00 for this citation. 

Inspector Timmons testified that the wood liner had been removed and was sitting off to 

the side. {Tr. 711-15). The liner was dirty and dusty, which led the inspector to conclude that 

the violative condition had existed for at least a few days. He found about eight sticks ofTorpex, 

which is a high explosive, in the magazine. 

Mr. Clift testified that the magazine was for the storage of detonators, not high 

explosives. {Tr. 856-57). At the time the citation was issued, an independent contractor was 

performing blasting work at the plant. 

I affirm the citation and find that a penalty of $60.00 is appropriate. 

9. On October 5, 2005, Inspector Timmons issued Citation No. 6321289 alleging a 

violation of section 56.14100(b). (Ex. G-50). The citation alleges that the headlights on the 

Komatsu 210-M haul truck were not working. The truck was in use hauling rock. Inspector 

Timmons determined that an injury was unlikely but that any injury would result in lost 

workdays or restricted duty. He determined that the violation was not S&S and that the 

negligence was moderate. The Secretary proposes a penalty of $60.00 for this citation. 

Inspector Timmons testified that the truck is used to transport rock at the plant. {Tr. 716-

19). Headlights affect safety because the plant operates when it is still dark. Clift testified that, 

30 FMSHRC 293 
although the company fixes broken headlights, he does not consider a broken light to be a "safety 

defect." (Tr. 859). 

I find that broken lights are a defect that affects safety. The citation is affirmed and a 

penalty of $60.00 is appropriate. 

10. On November 22, 2005, Inspector Dye issued Citation No. 6291667 alleging a 

violation of section 46.7(a). (Ex. G-51). The citation alleges that Travis Larson was not given 

adequate task training on the International Huff payloader (front-end loader) in which he had no 

previous work experience. Inspector Dye determined that an injury was reasonably likely and 

that any injury would likely be fatal. He determined that the violation was S&S and that the 

negligence was moderate. The safety standard provides that task training must be provided to 

any miner who is assigned to a new task in which he has no previous work experience. The 

Secretary proposes a penalty of $165.00 for this citation. 

Inspector Dye was at the plant to determine if Mr. Larson had been adequately trained to 

operate the front-end loader at the time of his accident, as discussed above. (Tr. 744). Larson 

had been hired by Nelson Quarries as a haul truck driver. He had not held any other positions at 

the plant. (Tr. 745). The controls for a truck and payloader are different and the operator 

performs a different type of work on each. (Tr. 747). When Inspector Dye interviewed 

management and hourly employees at the plant, nobody suggested that Larson had been tasktrained on the loader. (Tr. 749). Larson's new miner training record shows that he was trained 

for haul truck operations. (Tr. 753-54; Ex. G-5ld, p. 1). A letter dated December 7, 2005 from 

Patrick Clift to Inspector Dye also states that Larson had not been task trained to operate a loader. 

(Tr.750-51, 762-63; Ex. G-51c). Inspector Dye believed that it was reasonably likely that a 

serious injury would result because Larson had not been trained to operate the loader before he 

used it. 

Clift testified that Mr. Benedict did not have the authority to assign Larson to operate the 

loader. Benedict was disciplined for ordering Larson to operate the loader. (Tr. 860). I affirm 

this citation. I have already determined that Mr. Benedict was the agent of Nelson Quarries when 

he ordered Mr. Larson to operate the loader. It is clear that Larson had not been task- trained. 

There is no evidence that Larson had ever operated a loader before. The violation is S&S 

because it was reasonably likely that the hazard contributed to by the violation would have 

resulted in an injury of a reasonably serious nature. Because Benedict ordered Larson to operate 

the loader against the instructions of his supervisor, I find that the negligence should be reduced. 

A penalty of $100.00 is appropriate. 

11. On November 15, 2005, Inspector Barrington issued Citation No. 6317446 alleging a 

violation of section 56.12040. (Ex. G-52). The citation alleges that operating controls in the 

distribution boxes in the motor control center were installed in such a way that they could not be 

operated without the danger of contact with energized conductors and terminals. Inspector 

Barrington determined that an injury was reasonably likely and that any injury would likely be 

30 FMSHRC 294 
fatal. He determined that the violation was S&S and that the negligence was moderate. The 

safety standard provides that operating controls be installed so that they can be operated without 

the danger of contact with energized conductors. The Secretary proposes a penalty of $165 .00 

for this citation. 

Inspector Barrington testified that the electrical system was not energized at the time of 

his inspection. The electrical system was 480-volt phase-to-phase applied with 277-volt phaseto-ground that was furnished by a diesel generator. (Tr. 765). When the distribution box was 

opened, the circuit breakers and other components of the electrical circuits were fully exposed. 

(Tr. 766-72; Exs. G-52c through Ex. G-52i). The violation presented a significant burn, shock, 

and electrocution hazard to anyone who entered the motor control center. The crusher is 

operated from a stop-start button at a different location. (Tr. 815). All of the electrical controls 

were inside cabinets, which were all closed at the time of the inspection. Management advised 

Inspector Barrington that power to the motor control traileris cut off before any work is 

performed in the trailer. (Tr. 816). 

Mr. Clift testified that all of the electrical components were inside of cabinets in the 

motor control room. This control room is off limits to employees and they are trained not to 

enter the area. (Tr. 860). The control room is usually kept locked, but it was not locked on the 

day of the inspection because the generator had not been started. (Tr. 889). The motor control 

room has been in use for about 15 years in the same condition and it has never been cited by 

MSHA. Indeed, another inspector required the company to improve the grounding system, so he 

was aware of the condition of the electrical cabinets. The crusher is not operated from this 

control room. (Tr. 862). The plant is shut down and locked out whenever any work is performed 

in the control room. 

It is important to understand that Nelson Quarries' facilities had never been inspected by 

an MSHA electrical inspector because the Topeka, Kansas, office is not staffed with an electrical 

inspector. The hazard complaint filed with MSHA alleged that the "electricity is bad on all 

plants." (Ex. G-11). As a consequence, MSHA brought in a electrical inspector from its Salt 

Lake City office to inspect all the plants for compliance with the Secretary's electrical standards. 

This citation is one of many that Inspector Barrington issued. The photographs he took show that 

when the doors to the electrical cabinets were opened, all of the electrical components were 

exposed. (Exs. G-52c - 52i). Typically, electrical components are protected from accidental 

contact within the cabinet. 

I find that the Secretary established a violation. Anyone who opened the cabinets faced a 

risk of an electric shock hazard. The wires and terminals for the circuit breakers were totally 

exposed. Circuit breakers are operating controls. The fact that the company had never been cited 

for this condition simply reflects that fact that its plants had never been subject to an electrical 

inspection. 

30 FMSHRC 295 
I find that the Secretary did not establish that the violation was S&S. The crusher is not 

operated from this trailer as the start-stop button is at a different location. The trailer is kept 

locked when the plant is operating and only authorized persons may enter the trailer. The plant is 

shut down and locked out whenever any work is performed in the control room. A penalty of 

$100.00 is appropriate. 

12. On November 15, 2005, Inspector Barrington issued Citation No. 6317432 alleging a 

violation of section 56.14107(a). (Ex. G-53). The citation alleges that the alternator and drive 

belt on the Caterpillar 769C haul truck were not guarded to prevent contact. Inspector Barrington 

determined that an injury was unlikely and that any injury would likely be permanently disabling. 

He determined that the violation was not S&S and that the negligence was moderate. The 

Secretary proposes a penalty of $60.00 for this citation. 

Inspector Barrington testified that the violation was on the left side of the engine 

compartment on the truck near the cooling fan. If anyone were to check the area looking for oil 

leaks or air leaks on the compressor when the engine was running could become entangled in the 

moving parts. (Tr. 778). The cited pulleys were near the middle of the engine. (Tr. 818). 

The truck is serviced at the front from the top. (Tr. 864). Clift testified that the truck has 

been previously inspected by MSHA. Michael Peres testified that on previous inspections, one 

MSHA inspector (Dustin Crelly) told him that recessed alternator belts need not be guarded on 

trucks where the fluids are checked from the top as miners were not exposed to the hazard. (Tr. 

891). Truck engines are too loud to hang around them when they are running unless you have a 

specific reason to be there. (Tr. 894). Inspector Crelly denied making such statements. (Tr. 

920). 

I find that the Secretary established a violation. Alternator and drive belts on haul trucks 

are required to be guarded. I agree with Peres that the violation was not very serious because the 

chance of accidental contact was not very great. I credit Inspector Crelly' s testimony that he 

never advised the company that recessed belts are not required to be guarded. A penalty of 

$60.00 is appropriate. 

13. On November 16, 2005, Inspector Barrington issued Citation No. 6317440 alleging a 

violation of section 56.11002. (Ex. G-54). The citation alleges that safe access was not provided 

to the fuel check port on the 7200 gallon fuel tank. Inspector Barrington determined that an 

injury was unlikely and that any injury would likely be fatal. He determined that the violation 

was not S&S and that the negligence was moderate. The safety standard provides "crossovers, 

elevated walkways, elevated ramps, and stairways shall be of substantial construction provided 

with handrails, and maintained in good condition." The Secretary proposes a penalty of $60.00 

for this citation. 

Inspector Barrington testified that there were stairs to the top of the horizontal tank but 

that a miner would have to walk along the top of the tank to check the fuel level. (Tr. 807-10; 

30 FMSHRC 296 
Bxs. G-54c and 54d). There were no handrails along the top of the tank, which was a rounded 

surface. A miner went to the top of the tank monthly to check the fuel level. It was ten feet to 

the ground from the top of the fuel tank. 

I find that the Secretary established a violation. The Secretary has not defined the term 

"walkway." Nevertheless, it can be defined as a "passage for walking." See, Summit, Inc., 13 

FMSHRC 1511, 1517 (Sept. 1991) (ALJ). It was not disputed that a miner walks on top of the 

fuel tank once a month to check the fuel level. The top of a fuel tank has been construed as a 

"walkway" under similar circumstances. Thor Mining Co., 2 FMSHRC 1592, 1598 (June 1980) 

(ALJ). Handrails were not provided. A penalty of$60.00 is appropriate. 

14. On November 16, 2005, Inspector Barrington issued Citation No. 6317442 alleging a 

violation of section 56.11002. (Ex. G-55). The citation alleges that the handrails on the stairway 

leading up into the generator trailer were not being properly maintained. Inspector Barrington 

determined that an injury was unlikely and that any injury would likely result in lost workdays or 

restricted duty. He determined that the violation was not S&S and that the negligence was 

moderate. The Secretary proposes a penalty of $60.00 for this citation. 

Inspector Barrington testified that once per shift someone would enter the generator 

trailer to start the generator. Barrington testified that he was with MSHA Inspector Tedesco 

during this inspection. When Tedesco walked up the cited stairway the handrail came apart in 

his hand and he stumbled off the stairs. (Tr. 812-13, 819). The coupler holding the metal parts 

together had pieces missing. Mr. Clift testified that the condition was not obvious because the 

pieces were still together. 

This citation is affirmed. I find that the negligence should be reduced because the defect 

was hidden. A penalty of $40.00 is appropriate. 

15. Prior to the hearing, the Secretary agreed to vacate Citation Nos. 6317 429, 4317 430, 

6317436, 6317437, and 6317438. Nelson Quarries agreed to withdraw its contest of Citation No. 

6317441. 

H. CENT 2006-204-M, Plant 2. 

1. On February 24, 2005, Inspector Timmons issued Citation No. 6290519 alleging a 

violation of section 56.14101(a)(3). (Ex. G-56). The citation alleges that the park brake on the 

Dresser Haul pack truck was not maintained in working condition. Inspector Timmons 

determined that an injury was unlikely but that any injury would likely be permanently disabling. 

He determined that the violation was not S&S and that the negligence was moderate. The safety 

standard provides that braking systems installed on equipment shall be maintained in functional 

condition. The Secretary proposes a penalty of $60.00 for this citation. 

30 FMSHRC 297 
Inspector Timmons testified that the truck rolled when he had a miner test the park brake. 

(Tr. 904). The truck was empty. The truck had been used on the previous day and the driver told 

the inspector that the park brake had been working. The service brakes were working on this 

truck. (Tr. 907). Michael Peres testified that, because the park brake had worked the day before, 

it must have become inoperable the morning of the inspection. (Tr. 1023). 

There is no dispute that the park brake was not working when tested. It is apparent, 

however, that the brake had been functioning the previous day and it is likely that it became 

inoperable during the shift. The operator's negligence is quite low. See, Higman Sand & Gravel, 

25 FMSHRC 175, 181 (April 2003) (ALJ). A penalty of $10.00 is appropriate. 

2. Prior to the hearing, the Secretary agreed to vacate Citation Nos. 6317431 and 

6317433. 

I. CENT 2006-206-M, Plant 4. 

1. On November 15, 2005, Inspector Crelly issued Citation No. 6291248 alleging a 

violation of section 56.6130(a). (Ex. G-74). The citation alleges that there was a stick of 

Boostrite stored on the shelf in the crusher shack, which is occupied by the crusher operator 

about ten hours a day. Inspector Crelly determined that an injury was reasonably likely and that 

any injury would likely be fatal. He determined that the violation was S&S and that the 

negligence was moderate. The Secretary proposes a penalty of $24 7. 00 for this citation. 

Inspector Crelly testified that Travis Tomlinson, the crusher operator, stored the explosive 

material in the crusher shack. (Tr. 951 ). Shotshell primers were on the same shelf Id. 

Shotshell primers are a type of detonator that initiates a blasting cap to detonate explosives. 

Primers should never be stored with explosives. Inspector Crelly observed Tomlinson smoking 

in the area. Crelly concluded that if these conditions were to continue it was reasonably likely 

that a fatal accident would occur. (Tr. 953-54). The crusher shack was about five feet wide and 

six feet long. No shock tube was in the crusher shack. (Tr. 1017). 

Peres testified that the shotshell primers are not detonators. (Tr. 1045). He said that a 

blasting cap or other detonator would be required to shoot off the Boostrite. Shot shells are not 

required to be stored in an explosives magazine. People store them in their homes. (Tr. 1073). 

At the quarry, shot shells are sometimes put in the dynamite magazine. 

The inspector cited the company for having the Boostrite stored in the crusher shack. 

Although the presence of the Shotshell primers may have added to the danger, it was the 

presence of the explosive material that created the safety hazard. In addition, the manufacturer of 

shotshell primers warns that they are subject to mass detonation and that they are sensitive to 

"impact, friction, heat, flame, static electricity and mishandling abuses." (Ex. G-140 p. 4. The 

manufacturer also advises that smoking should not be permitted around primers. Id. I find that 

the Secretary established a violation because the Boostrite was not stored in a magazine. The 

30 FMSHRC 298 
violation was S&S and serious. I find that a violation of $500.00 is appropriate for this violation 

because of the serious nature of the cited condition. 

2. · On November 17, 2005, Inspector Barrington issued Citation No. 6317458 alleging a 

violation of section 56.12001. (Ex. G-7 5). The citation alleges that the power cords attached to 

the load side of the Cutler Hammer line starter were not properly protected against excessive 

overload by the heater coils. Inspector Barrington determined that an injury was reasonably 

likely and that any injury would likely be fatal. He determined that the violation was S&S and 

that the negligence was moderate.· The safety standard provides that circuits shall be protected 

against excessive overload by fuses or circuit breakers of the correct type and capacity. The 

Secretary proposes a penalty of $247.00 for this citation. 

Inspector Barrington testified that the three heater coils were not of the type specified by 

the manufacturer. (Tr. 1086-88). The amperage on the coils was oversized for the conditions. If 

there were to be an overload in a circuit, there would be a potential for arcing at the overload 

relay. The components could melt due to the high temperatures. Miners working at the plant 

were exposed to the hazard. The circuit would not open quickly enough to prevent the current 

from traveling to other areas in the plant along metal components. (Tr. 1090, 1097-98, 1104-05). 

Fuses and circuit breakers are designed for overcurrent conditions and thermal protection devices 

are for overload. (Tr. 1100). 

I affirm this citation in all respects. A penalty of $250.00 is appropriate. 

3. On November 16, 2005, Inspector Barrington issued Citation No. 6317453 alleging a 

violation of section 56.12001. (Ex. G-76). The citation alleges that the phase wires between the 

90 amp breaker and the Siemens line starter was not of the proper size and current carrying 

capacity. The citation further states that the No. 1 phase had "two wires in between the terminals 

of the breaker to the line starter estimated to be number 12 AWG." Inspector Barrington 

determined that an injury was unlikely but that any injury would likely be fatal. He determined 

that the violation was not S&S and that the negligence was moderate. The Secretary proposes a 

penalty of $60.00 for this citation. 

During his inspection, the inspector noticed that the phase conductors between the 

breaker and a line starter were not all of the same size. The subject line starter is in the motor 

control center. It is 480 volts phase-to-phase and 277 volts phase-to-ground. (Tr. 1091). All of 

the wires should have been 6 AWG under the National Electrical Code and other reference 

materials. (Tr. 1094-97; Ex. G-75d). At the hearing, he testified that the two wires that were of 

concern to him appeared to be about a size 10 and together they did not match up to the "same 

value in wiring as the size 6 would have." (Tr. 1092). If there were a short ·circuit or a ground 

fault, it would bypass the overload protection in the line starter would likely burn up two wires 

before the breaker tripped. Ken Nelson testified that the company never buys A WG Gage No. 12 

wire. (Tr. 1111 ). The inspector assumed that the mine was using that size wire and based his 

citation on that assumption. 

30 FMSHRC 299 
In the citation, the inspector stated that the cited wiring appeared to be size 12, but at the 

hearing he referenced size 10. The company contends that it does not purchase size 12, but it 

admitted that it buys No. 10 wire. (Tr. 1111 ). The inspector calculated that the cited wires were 

too small to provide adequate protection and that AWG 6 wire would have been appropriate.4 

(Tr. 1094-99). I credit Inspector Barrington's testimony because of his electrical expertise. I 

affirm the citation and the proposed penalty of $60.00. 

4. Prior to the hearing, Nelson Quarries agreed to withdraw its contest of Citation No. 

6291249. 

J. CENT 2006-207-M, Plant 3. 

1. On June 28, 2005, Inspector Timmons issued Citation No. 6290611 alleging a 

violation of section 56.14132(a). (Ex. G-77). The citation alleges that the horn on the Caterpillar 

haul truck No. 36 was not maintained in working condition. Inspector Timmons determined that 

an injury was unlikely but that any injury would likely be permanently disabling. He determined 

that the violation was not S&S and that the negligence was moderate. The Secretary proposes a 

penalty of $60.00 for this citation. 

The parties agreed that I should base my decision on this citation on the evidence 

presented with respect to Citation No. 6290520. Based on that evidence, I find that the Secretary 

established a non-S&S violation of the safety standard with low negligence. A penalty of$40.00 

is appropriate. 

2. On June 28, 2005, Inspector Timmons issued Citation No. 6290612 alleging a 

violation of section 56.14132(a). (Ex. G-78). The citation alleges that the horn on the Volvo 

330-D front-end loader was not maintained in working condition. The loader was in use at the 

time of the inspection. Inspector Timmons determined that an injury was unlikely but that any 

injury would likely be permanently disabling. He determined that the violation was not S&S and 

that the negligence was moderate. The Secretary proposes a penalty of $60. 00 for this citation. 

The parties agreed that I should base my decision on this citation on the evidence 

presented with respect to Citation No. 6290520. Based on that evidence, I find that the Secretary 

established a non-S&S violation of the safety standard. A penalty of $60.00 is appropriate. 

3. Prior to the hearing, Nelson Quarries withdrew its contest of Citation No. 6290614 

and it agreed to pay the proposed penalty for Citation No. 6290615 at the hearing. (Tr. 1145). 

K CENT 2006-208-M, Plant 3. 

4 The smaller the A WG number, the larger the wire. 

30 FMSHRC 300 
1. On June 28, 2005, Inspector Timmons issued Citation No. 6290622 alleging a 

violation of section 56.5001(a)/5005. (Ex. G-80). The citation alleges that Caterpillar haul truck 

operator J. Hillbrand was exposed to a shift-weighted average of 1.40 mg/m3 of respirable silica 

bearing dust. This reading exceeded the Threshold Limit Value of 1.25 mg/m3 times the error 

factor. Respiratory protection was not being used and a respiratory protection program was not 

in place. Inspector Timmons determined that an injury was reasonably likely and that any injury 

would likely be permanently disabling. He determined that the violation was S&S and that the 

negligence was moderate. The health standard provides, in part, that "exposure to airborne 

contaminates shall not exceed, on the basis of a time weighted average, the threshold limit values 

adopted by the American Conference of Governmental Industrial Hygienists .... " Section 

56.5005 provides, in part, that when "engineering control measures have not been developed or 

when necessary by the nature of the work involved ... , employees may work for reasonable 

periods of time in concentrations of airborne contaminates exceeding permissible levels if they 

are protected by appropriate respiratory protective equipment." The Secretary proposes a penalty 

of $749.00 for this citation. 

Inspector Timmons testified that a silica dust survey had not been conducted at the plant 

for at least five years. (Tr. 1115). He sampled five miners. He used his normal sampling 

protocol. The samples were analyzed at MSHA's laboratory using its normal testing protocol. 

The results showed that Mr. Hillbrand was overexposed (Tr. 1130-31; Ex. G-80d). The company 

violated both safety standards because the test results showed that Hillbrand was overexposed 

and there were no administrative or engineering controls in place to deal with situations where 

miners were overexposed. (Tr. 1133-34). The truck that Hillbrand was driving did not have airconditioning and the windows were down. Nelson Quarries had not conducted their own dust 

sampling at the quarry. He designated the citation as S&S because whenever there is an 

overexposure of silica-bearing dust and the employee is not subject to any administrative or 

engineering controls, such as wearing a fit-tested respirator, it is reasonably likely that the 

employee will develop a respirable illness of a reasonably serious nature. Inspector Timmons 

also testified that it was his understanding that Hillbrand was in the development area hauling 

dirt from the top of the highwall. {Tr. 1138). He was driving in dirty dusty areas. 

Ken Nelson testified that he had no knowledge that anyone working at his quarries were 

overexposed to silica-bearing dust. (Tr. 1142). Dust sampling had never been performed at the 

plant. When this citation was issued, he took the truck out of service until air-conditioning was 

installed. Air-conditioning was installed in other trucks as well. He also immediately assigned 

Mr. Hillbrand to work in areas that, based on MSHA testing, were not as dusty. 

MSHA is permitted to issue citations based on a single-shift silica dust survey. I reach 

this conclusion based on the Commission's decision in Asarco, Inc., 17 FMSHRC 1 (1995), and 

former Commission Administrative Law Judge Maurer's subsequent analysis in Asarco, Inc., 19 

FMSHRC 1097, 1130-1136 (1997). Based on the evidence presented, Judge Maurer concluded 

that "MSHA's use of single-shift sampling is a reasonable means of ascertaining, to the requisite 

degree of accuracy, whether the enforcement concentration level standard in section 57.5001(a) 

30 FMSHRC 301 
has been exceeded." Id. at 1136. See Excel Mining, LLC., 22 FMSHRC 318, 319-20 (Mar. 

2000) ("We have held that the legal basis for rejecting the use of single-shift sampling in coal 

mines does not apply to metal/non-metal mines."). See also Sec '.Y of Labor v. Excel Mining, 

LLC, 334 F.3d 1 (DC Cir. 2003). 

I find that the Secretary established a violation. It is important to note that the company 

had not been doing its own silica-dust sampling. Nelson Quarries was not using any 

administrative or engineering controls to protect the truck driver from the dust. 

The violation contributed to a discrete health hazard. I also find that the evidence 

establishes that there was a reasonable likelihood that the hazard contributed to by the violation 

would result in an illness of a reasonably serious nature. As stated above, Hillbrand was 

overexposed to silica dust. The roadways were not being watered, the windows on the truck 

were down, Hillbrand was not wearing a respirator, and administrative controls were not being 

used. Nelson Quarries did not have in place a program for monitoring the exposure to silica dust 

so it had no way of knowing whether anyone was being overexposed. Taking into consideration 

continuing mining operations, I find that the violation was S&S and serious. A penalty of 

$750.00 is appropriate. 

2. On November 2, 2005, Inspector Dye issued Citation No. 6291604 alleging a violation 

of section 56.14107(a). (Ex. G-81). The citation alleges that the alternator belt on the Caterpillar 

96B loader was not guarded to prevent persons from becoming entangled in the moving machine 

parts. Inspector Dye determined that an injury was unlikely and that any injury would likely be 

fatal. She determined that the violation was not S&S and that the negligence was moderate. The 

Secretary proposes a penalty of $60.00 for this citation. 

The parties agreed that I should base my decision on this citation on the evidence 

presented with respect to Citation No. 6317432. Based on that evidence, I find that the Secretary 

established a non-S&S violation of the safety standard. Alternator belts on loaders are required 

to be guarded, but the violation was not serious because the chance of accidental contact was not 

very great. A penalty of $60.00 is appropriate. 

3. On November 2, 2005, Inspector Dye issued Citation No. 6291611 alleging a violation 

of section 56.12006. (Ex. G-82). The citation alleges that the motor control center "controlling 

35 motors from 14 distribution boxes in the electrical trailer was not provided with separate 

disconnecting devices for each branch circuit." Inspector Dye determined that an injury was 

unlikely and that any injury would likely be fatal. She determined that the violation was not S&S 

and that the negligence was moderate. The Secretary proposes a penalty of $60 .00 for this 

citation. 

The parties agreed that I should base my decision on this citation on the evidence 

presented with respect to Citation No. 6317445. Based on that evidence, set forth below, I find 

that the Secretary established a non-S&S violation of the safety standard. As stated below, it is 

30 FMSHRC 302 
clear from the regulation that each branch circuit is required to have its own disconnecting 

device. Circuit breakers or plugs are typically used as disconnecting devices. A penalty of 

$60.00 is appropriate. 

L. CENT 2006-228-M, Plant 2. 

1. On November 15, 2005, Inspector Barrington issued Citation No. 6317 444 alleging a 

violation of section 56.12001. (Ex. G-104). The citation alleges that the 10/4 AWG, SO-type 

power cord was not properly protected against overload by the Square D circuit breaker. 

Inspector Barrington determined that an injury was reasonably likely and that any injury would 

likely be fatal. He determined that the violation was S&S and that the negligence was moderate. 

The Secretary proposes a penalty of$247.00 for this citation. 

Inspector Barrington testified the No. 10 AWG wire of a four conductor cable coming off 

the bottom of a 70-amp breaker did not meet the requirements ofthe safety standard. (Tr. 1148). 

The circuit was 480 volts phase-to-phase and 227 volts phase-to-ground. The power was not on. 

The wire was rated for 30 amps but the breaker was rated for 70 amps. Thus, there was 

insufficient overload protection on the circuit. A 70-amp breaker is not of the correct type and 

capacity for a No. 10 wire. The wiring would overheat and fault out before the breaker would 

trip. (Tr. 1152). The fault would likely travel through metal components of the equipment at the 

quarry. (Tr. 1152-53). The installation did not meet the requirements of the National Electrical 

Code. (Tr. 1228-30). 

I find that the Secretary established a violation and that the violation was S&S. The 

circuit was not adequately protected. It was reasonably likely that the hazard contributed to by 

the violation would result in a serious injury given continued mining operations. A penalty of 

$250.00 is. appropriate. 

2. On November 15, 2005, Inspector Barrington issued Citation No. 6317445 alleging a 

violation of section 56.12006. (Ex. G-105). The citation alleges that the distribution box 

mounted in the motor control center for the screening and crushing plant was not provided with a 

disconnecting device for each branch circuit. Inspector Barrington determined that an injury was 

reasonably likely and that any injury would likely be fatal. He determined that the violation was 

S&S and that the negligence was moderate. The safety standard provides that distribution boxes 

be provided with a disconnecting device for each branch circuit and that the disconnecting 

devices be designed so that it can be determined by visual observation whether the circuit is 

energized. The Secretary proposes a penalty of $24 7 .00 for this citation. 

Inspector Barrington testified that there were two circuits coming off the distribution box 

from one breaker. (Tr. 1184-86, Ex. G-105c). He stated that the violation was obvious. The 

standard required that each circuit be isolated with its own disconnecting device. There were 

separate thermal protection devices for each circuit, each with its own starting buttons. (Tr. 

1231 ). Miners were exposed to the hazard because the circuits could not be isolated. 

30 FMSHRC 303 
Mr. Peres testified that the National Electrical Code allowed the configuration of circuits 

that were present at the quarry. (Tr. 1256). The two pieces of equipment (the cone return and the 

521 conveyor) could be run independently and they each had their own start button. 

It is clear from the regulation that each branch circuit is required to have its own 

disconnecting device. Circuit breakers or plugs are typically used as disconnecting devices. The 

circuit breaker in question controlled two branch circuits. (See, PPM Part 56/57.12006). The 

fact that the piece of equipment on each circuit had their own stop/start button does not obviate 

this requirement. Each circuit must have its own visible disconnecting device. This violation 

was obvious. (Ex. G-105c). I find that the Secretary established a violation. I also credit 

Inspector Barrington' s testimony concerning the hazards created by this violation and I find that 

the violation was S&S. A penalty of$250.00 is appropriate. 

3. On November 15, 2005, Inspector Barrington issued Citation No. 6317443 alleging a 

violation of section 56.12018. (Ex. G-106). The citation alleges that the principal power 

switches were not all labeled to show which units they controlled. Inspector Barrington 

determined that an injury was not reasonably likely but that any injury would likely be fatal. He 

determined that the violation was not S&S and that the negligence was moderate. The safety 

standard required that principal power switches be labeled to show which units they control 

unless identification can be made readily by location. The Secretary proposes a penalty of $60.00 

for this citation. 

Barrington testified that the company had numbers posted on the covers for the 

distribution boxes but they did not all match up with what was in the field. (Tr. 1190, 1236, 

1251). The labels were not on or near the breakers but were on the outside of the doors for the 

distribution boxes. It would have been easy to open the incorrect breaker when attempting to 

perform repairs on a piece of electrical equipment. Proper identification is especially important 

in an emergency situation. (Tr. 1192, 1196). Mr. Peres testified that the labels on the outside of 

the panels are kept up to date. (Tr. 1258). 

I credit the testimony of Inspector Barrington. The citation is affirmed and a penalty of 

$60.00 is assessed. 

4. On November 15, 2005, Inspector Barrington issued Citation No. 6317447 alleging a 

violation of section 56.12008. (Ex. G-107). The citation alleges that the cable for the 503 short 

belt was pulled from the electrical enclosure through the entrance gland exposing the phase and 

ground conductors. Inspector Barrington determined that an injury was not reasonably likely but 

that any injury would likely be fatal. He determined that the violation was not S&S and that the 

negligence was moderate. The safety standard provides, in part, that cables shall enter metal 

frames of electrical components only through proper fittings. The Secretary proposes a penalty 

of $60.00 for this citation. 

30 FMSHRC 304 
The inspector testified that the cables for one of the conveyors had pulled through the 

bushing and was hanging by the phase conductors. (Tr. 1196-98; Ex. G-107c). The outer jacket 

had pulled out of the fitting. The inspector did not know how long the condition existed. (Tr. 

1240). The insulation around the conductors had not yet been damaged. 

This citation is affirmed as a non-S&S violation. A penalty of $60.00 is appropriate. 

5. On November 16, 2005, fuspector Barrington issued Citation No. 6317450 alleging a 

violation of section 56.12008. (Ex. G-108). The citation alleges that the three wires entering the 

top of the power bus box were not adequately insulated. fuspector Barrington determined that an 

injury was not reasonably likely but that any injury would likely be fatal. He determined that the 

violation was not S&S and that the negligence was moderate. The Secretary proposes a penalty 

of $60.00 for this citation. 

The inspector testified that the metal openings were bushed but the wires entering the box 

through the bushings did not have outer jackets. (Tr. 1202; Ex. G-108d). The jacket had been 

stripped back so that the wires could fit through the openings. Because the bushings were not 

insulated, but were metal, the installation did not meet the requirements of the standard. The 

insulation on the wires had not been damaged. Mr. Peres testified that the mine wraps electrical 

tape around the wires where they pass through the bushing to provide the required insulation. 

(Tr. 1260). 

Electrical tape is no substitute for an adequate bushing and there is no proof that electrical 

tape was present in this installation. The Secretary established a violation and the proposed 

penalty of$60.00 is appropriate. 

6. On November 16, 2005, fuspector Barrington issued Citation No. 6317449 alleging a 

violation of section 56.12025. (Ex. G-102). The citation alleges that the grounding system on 

the IC bin conveyor was not maintained as required. When tested, the grounding system 

measured 75 ohms to ground. fuspector Barrington determined that an injury was reasonably 

likely and that any injury would likely be fatal. He determined that the violation was S&S and 

that the negligence was moderate. The Secretary proposes a penalty of $247.00 for this citation. 

fuspector Barrington testified that when he tested the ground for the conveyor using a 

Triplett analog meter, he determined that the resistance in the grounding wire was sufficiently 

high that.it would not trip the breakers it was serving. (Tr. 1208, 1210). He used his standard 

procedure when testing the grounding system. (Tr. 1246-48). Richard Tedesco helped him 

perform the test. (Tr. 1234). The impedance was too high given the size of the grounding wire 

to carry the current back to the breaker. The company's testing records did not indicate that there 

was any problem with the grounding system. (Tr. 1232). The violation was S&S because the 

likelihood of someone getting injured was high. (Tr. 1216). 

30 FMSHRC 305 
Mr. Peres testified that he performs the annual continuity and earth ground tests at all five 

plants. (Tr. 1261). When a ground wire shows resistance, it is usually because of dirt or 

corrosion at a connection point. Testing the ground wire can be tricky and he sometimes gets 

false readings. When he gets a better connection with the meter, the ground wire has always 

passed the annual test. If the test is performed by someone who lacks experience, a false reading 

can easily be obtained. (Tr. 1263). He is not aware of any problems that fuspector Barrington 

had when he checked the grounding systems at the plant. (Tr. 1169). A reading of 73 ohms, if 

the test were performed correctly, would show a problem with the grounding wire. 

I find that the Secretary established an S&S violation of the safety standard. I credit the 

inspector's testimony that he correctly tested the grounding system. Although corrosion may 

have created the problem, the hazard was still present and serious. It was reasonably likely that 

someone would be injured or electrocuted if the condition were not corrected. A penalty of 

$250.00 is appropriate taking into consideration the penalty criteria. 

7. On November 16, 2005, fuspector Barrington issued Citation No. 6317448 alleging a 

violation of section 56.12025. (Ex. G-103). The citation alleges that the grounding system on 

the El Jay screen conveyor was not maintained as required. When tested, the grounding system 

measured 9 ohms to ground. fuspector Barrington determined that an injury was unlikely but that 

any injury would likely be fatal. He determined that the violation was not S&S and that the 

negligence was moderate. The Secretary proposes a penalty of $60.00 for this citation. 

The circumstances that led fuspector Barrington to issue this citation were similar to those 

in the previous citation. (Tr. 1222-23). For the same reasons, I affirm the citation and assess a 

penalty of $60.00. 

8. The Secretary agreed to vacate Citation No. 6317428. 

M. CENT 2006-229-M, Plants 1 and 3. 

1. On November 21, 2005, fuspector Barrington issued Citation No. 6317462 alleging a 

violation of section 56.12008. (Ex. G-109). The citation alleges that the cables entering the 

bottom metal frame of the motor control enclosure were not provided with proper fittings. There 

were 16 cables entering the enclosure and 4 of them were not properly bushed. fuspector 

Barrington determined that an injury was unlikely but that any injury would likely be fatal. He 

determined that the violation was not S&S and that the negligence was moderate. The Secretary 

proposes a penalty of $60.00 for this citation. 

fuspector Barrington testified that four of the 480-volt cables were not properly bushed. 

(Tr. 1303). The motor control center was subject to vibration because it was in the same trailer 

as the generator. The sharp edges of the box could have cut into the cables and the cables could 

otherwise loosen. (Tr. 1306). Mr. Peres testified that this citation was actually issued at Plant 1, 

as was Citation No. 6317463. 

30 FMSHRC 306 
I affirm this citation based on Inspector Barrington's testimony. A penalty of $60.00 is 

appropriate. 

2. On November 21, 2005, Inspector Barrington issued Citation No. 6317463 alleging a 

violation of section 56.12032. (Ex. G-110). The citation alleges that the inspection plates on the 

110 volt breaker were not secured as required. Inspector Barrington determined that an injury 

was unlikely but that any injury would likely be fatal. He determined that the violation was not 

S&S and that the negligence was moderate. The safety standard provides that inspection and 

cover plates on electrical equipment and junction boxes shall be kept in place except for testing 

or repairs. The Secretary proposes a penalty of $60.00 for this citation. 

Inspector Barrington testified that as he was inspecting the area he bumped the breaker 

box and the cover fell off. (Tr. 1311). Mr. Peres testified that the plant had not been in operation 

for three months. (Tr. 1368). 

I find that the Secretary established a violation. The violation was not serious and the 

company's negligence was low. A penalty of $40.00 is appropriate. 

3. On November 2, 2005, Inspector Dye issued Citation No. 6291597 alleging a violation 

of section 56.9315. (Ex. G-111 ). The citation alleges that there was visible dust coming from 

the plant, exposing persons to low visibility hazards. Inspector Dye determined that an injury 

was reasonably likely and that any injury would likely result in lost workdays or restricted duty. 

She determined that the violation was S&S and that the negligence was moderate. The safety 

standard provides that dust must be controlled at muck piles, material transfer piles, crushers and 

on haulage roads where hazards to persons could be created by impaired visibility. The Secretary 

proposes a penalty of $165.00 for this citation. 

Inspector Dye testified that as she was driving down the county road, she could see dust 

coming off the plant. {Tr. 1278). The plant was "engulfed in dust." (Exs. G-11 lc and 11 ld). 

The wind was blowing 25 miles per hour that day. The company did not have a water truck at 

the plant and water sprays were not installed at the crusher or along the conveyors. The haulage 

trucks did not have their headlights on. The company shut down the plant soon after the MSHA 

inspectors arrived and the dusty conditions abated. Mine operators that use dust control 

measures are able to greatly reduce the amount of dust produced in windy conditions. (Tr. 1185). 

The inspector believes that the dusty conditions created visibility hazards as well as a potential 

health hazard to employees. She determined that the violation was S&S because it was 

reasonably likely that trucks operating at the plant would be involved in an accident. The 

company submitted and implemented a dust control plan to abate the citation. 

Mr. Peres testified that the plant was shut down soon after the inspectors arrived because 

the wind had picked up. (Tr. 1361). He had previously called Mr. Nelson to ask him about the 

weather forecast and to tell him that the plant may need to shut down. Peres said that he did not 

30 FMSHRC 307 
know that MSHA was onsite when he made the decision to shut down the plant. He understands 

that the wind had picked up to a sustained speed of 35 mph with gusts even higher. It was not as 

windy earlier in the day and there were no visibility problems. (Tr. 1363). The plant is 

frequently shut down when it gets too windy. Peres said that the roadways are normally kept wet 

by using haul trucks and loaders to spread water along the roads. 

I credit the testimony of Mr. Peres and I vacate this citation. He testified that he shuts 

down a plant if it becomes too windy and dusty. 

N. CENT 2006-230-M, Plant 4. 

1. On November 16, 2005, Inspector Crelly issued Citation No. 6291253 alleging a 

violation of section 56.3200. (Ex. G-112). The citation alleges that the faces in the pit had not 

been scaled. The faces were about 30 to 35 feet high on the north side and 40 feet high on the 

south side. There was loose and unconsolidated material on both sides of the pit. Inspector 

Crelly determined that an injury was reasonably likely and that any injury would likely be fatal. 

The citation was subsequently amended to show that an accident was unlikely and that the 

violation was not S&S. The negligence was moderate. The standard provides that ground 

conditions that create a hazard to persons shall be taken down or supported before other work or 

travel is permitted in the area. The Secretary proposes a penalty of $60. 00 for this citation. 

Inspector Crelly testified that he observed loose, unconsolidated material on the pit faces. 

The pit was about 75 yards wide. (Tr. 956, 360; Ex. G-112d). He observed tire tracks eight feet 

from the edge of the face. The area at the base of the face had been cleaned up. (Tr. 959). If 

any of the loose material were to fall, it could strike someone under highwall. There was a sump 

pump in the area. Foreman Gene Andres told the inspector that the company does not have any 

equipment that can scale the highwall. Inspector Crelly believed it was too dangerous to get too 

close to the face to take any measurements. (Tr. 1001 ). 

Mr. Peres testified that other MSHA inspectors had advised the company that the higher 

the face the further back from the face miners are prohibited from entering. (Tr. 1048-49). He 

called it the 25 percent rule because you must stay back a quarter of the distance of the height. 

Peres estimated that loose rock around the base of the face protruded out about 12 feet. (Tr. 

1075). He further testified that there were no loose rocks along the face in the areas where rocks 

at the base had been removed with a loader. Nelson Quarries admitted during discovery that 

there was loose and unconsolidated material on the north side of the pit and that no scaling had 

been performed. (Tr. 1078-79; Ex. G-138). Scaling is not required if access to the area below 

the face is limited or blocked. (Tr. 1081 ). 

Mr. Andres testified that the loader tracks that the inspector observed were at least 13 feet 

away from the toe of the highwall. (Tr. 1162). The water pump was at least 40 feet from the 

highwall. Andres also testified that there was a trackhoe that was large enough to reach 30 feet 

up the wall but that the mine does not rely on scaling. Scaling would put the operator of the 

30 FMSHRC 308 
equipment in the zone of danger from falling rock. (Tr. 1170). Instead, barriers or berms are 

used to keep people away. (Tr. 1167, 1172). The company leaves some of the rock at the face to 

be removed during the next cycle. 

I agree with Nelson Quarries that the safety standard does not require scaling. The 

standard requires that ground conditions that create a hazard to persons be taken down before 

work is performed in the affected area. During discovery, Nelson Quarries admitted that there 

was "loose and unconsolidated material on the north face of' its pit. (Ex. G-138). The issue is 

whether the loose, unconsolidated material presented a hazard to persons. The company 

contends that rock at the base of the highwall blocked entry to anyone below this loose material. 

The MSHA's photographs are consistent with the testimony of Andres and Peres. I credit the 

testimony of Andres and Peres with respect to this citation. Rock at the base of the highwall 

provided a sufficient barrier and the loose material did not pose a hazard to the workers at the 

time of the inspection. Under the PPM, a mine operator is permitted to use piles of muck or 

large boulders to keep miners out from under highwalls. As a consequence, I vacate this citation. 

It bears noting that Nelson Quarries must ensure that there are berms or sufficient rock under any 

loose or unconsolidated material on the highwall to keep miners out of the zone of danger. It 

must comply with the requirements of sections 56.3130, 56.3131, and 56. 3200 at all times. 

Scaling must be performed if miners must work or travel under unconsolidated material on 

highwalls. 

2. On November 16, 2005, Inspector Crelly issued Citation No. 6291257 alleging a 

violation of section 56.14100(b). (Ex. G-113). The citation alleges that the bottom step on the 

Caterpillar 988F front end loader was missing. Inspector Crelly determined that an injury was 

reasonably likely and that any injury would likely be permanently disabling. The citation was 

later modified to show that an accident was unlikely and that the citation was not S&S. The 

negligence was moderate. The Secretary proposes a penalty of $60. 00 for this citation. 

Crelly testified that the bottom step was missing. (Tr. 966). The existing bottom step 

was 3 7 inches above the ground. The loader operator could slip and fall either ascending or 

descending the steps. The condition had existed for some time and the loader is used on a 

regular basis. Mr. Andres estimated that, with the missing step, the bottom step was about 31 or 

32 inches from the ground. (Tr. 1164). 

I find that the missing ladder rung did not present a safety hazard. Anyone entering the 

loader could use the handrails for support. The chance of an injury is remote at best. This 

citation is vacated. 

3. On November 16, 2005, Inspector Crelly issued Citation No. 6291259 alleging a 

violation of section 56.11001. (Ex. G-114). The citation alleges that safe access was not 

provided to the walkway on the 615 screen. A wire stand was being used to climb up to the 

walkway and over the handrail. Inspector Crelly determined that an injury was reasonably likely 

and that any injury would likely be fatal. The citation was later modified to show that an 

30 FMSHRC 309 
accident was unlikely and that the citation was not S&S. The negligence was moderate. The 

safety standard provides that safe access must be provided to all working places. The Secretary 

proposes a penalty of $60.00 for this citation. 

The inspector testified that the company was using a metal stand, which was not intended 

to be used as a ladder, to climb up onto the 615 screen. (Tr. 970; Ex. G-114c). Employees had 

to climb over the handrail once they were at the top, which was about ten feet above the ground. 

He estimated that employees accessed the walkway a few times a week. The walkway is a 

working place because miners must stand on the walkway while performing maintenance and 

inspecting the screen. Mr. Andres told the inspector that employees got to the walkway via the 

metal stand, but the inspector did not see anyone using this metal stand. (Tr. 973, 1004). 

Peres testified that there was a ladder for employees to use to gain access to the screen. 

This ladder is shown in exhibit G-130c. {Tr. 1050-51). There are also other portable ladders on 

the property that are used to go up on the screen. He was not aware that anyone used the wire 

stand to get up onto the screen. Mr Andres testified that there were ladders available to access 

the screen. {Tr. 116). 

The ladder referred to by Mr. Peres was tied to the frame of the screen and would not be 

easy to move. Although there may have been other ladders available, I credit Inspector Crelly's 

testimony that Mr. Andres told him employees use the wire stand. As stated above, I find that 

Mr. Andres was an agent of the operator. He had knowledge that miners were using the wire 

stand to get onto the screen. The citation is affirmed and a penalty of $60.00 is assessed. 

0. CENT 2006-231-M, Plant 3. 

On November 21, 2005, Inspector Barrington issued Citation No. 6317461 alleging a 

violation of section 56.12040. (Ex. G-115). The citation alleges, in part, that the operating 

controls inside the motor distribution box were installed so that they could not be operated 

without danger of contact with energized conductors and related terminals. After a conference, it 

was determined that an injury was unlikely but that any injury would likely be fatal. The 

negligence was moderate. The Secretary proposes a penalty of $60. 00 for this citation. 

The parties agreed that I should base my decision on this citation on the evidence 

presented with respect to Citation No. 6317446. Based on that evidence, I find that the Secretary 

established a non-S&S violation of the safety standard. The wires and terminals for the circuit 

breakers were totally exposed. Circuit breakers are operating controls. The fact that the 

company had never been cited for this condition simply reflects that fact that its plants had never 

been subject to an electrical inspection. The violation was not S&S because the plant is shut 

down and locked out whenever any work is performed. A penalty of $60.00 is appropriate. 

P. CENT 2006-233-M, Plant 4. 

30 FMSHRC 310 
1. On November 17, 2005, Inspector Barrington issued Citation No. 6317455 alleging a 

violation of section 56.12025. (Ex. G-116). The citation alleges that the grounding system on 

the 540 conveyor was not properly maintained. The grounding system measured 2.5 ohms to 

ground. After a conference, it was determined that an injury was unlikely but that any injury 

would likely be fatal. The negligence was moderate. The Secretary proposes a penalty of $60.00 

for this citation. 

Inspector Barrington testified that one of the company's employees helped with the 

testing. (Tr. 1315). His testimony with respect to this citation was the same as with other 

citations alleging a problem with a grounding system. It would take the breaker seconds or 

maybe minutes to trip in these circumstances. (Tr. 1344 ). Someone would have to be touching 

the metal :framework of the equipment for an injury to occur. The previous testimony of Mr. 

Peres also applies to this citation. He testified that it would only take about a half a second for 

the breaker to trip with a resistance of only 2.5 ohms. (Tr. 1371). 

For the reasons discussed above with respect to the other grounding citations issued under 

section 56.12025, this citation is affirmed. A penalty of $60.00 is assessed. 

2. On November 17, 2005, Inspector Barrington issued Citation No. 6317 457 alleging a 

violation of section 56.12025. (Ex. G-117). The citation alleges that the grounding system on 

the 509 conveyor was not properly maintained. The grounding system measured 1.5 ohms to 

ground. After a conference, it was determined that an injury was unlikely but that any injury 

would likely be fatal. The negligence was moderate. The Secretary proposes a penalty of $60.00 

for this citation. 

Inspector Barrington's testimony with respect to this citation was the same as with other 

citations alleging a problem with a grounding system. (Tr. 1317, 1345-46). As a general matter 

corrosion often causes grounding systems to failthe continuity test. Mr. Peres testified that he 

performs the annual continuity and earth ground tests. (Tr. 1368). He also retests the grounding 

systems anytime the plant is moved, a motor is replaced, or any equipment is moved. A reading 

of2.5 ohms is a very low resistance to ground. The condition was corrected by cleaning the 

terminals to remove corrosion. (Tr. 1370). 

For the reasons discussed above with respect to the other grounding citations issued under 

section 56.12025, this citation is affirmed. A penalty of$60.00 is assessed. 

3. On November 16, 2005, Inspector Barrington issued Citation No. 6317452 alleging a 

· violation of section 56.12002. (Ex. G-118). The citation alleges that the control breakers 

mounted in the distribution boxes in the motor control center were not properly installed in that 

vibration from the generator had backed the mounting screws out, making it difficult to reset the 

breaker. After a conference, it was determined that an injury was unlikely but that any injury 

would likely be fatal. The negligence was moderate. The safety standard provides, in part, that 

30 FMSHRC 311 
switches and controls for electric circuits shall be properly installed. The Secretary proposes a 

penalty of $60.00 for this citation. 

The inspector testified that the condition was obvious. (Tr. 1322-23; Ex. G-l 18c). The 

breaker assembly was secured by only one screw so it would move if anyone were required to 

reset the breaker. A miner would have to hold it with one hand while resetting the switch, which 

would expose the miner to an electric shock hazard. (Tr. 1325-26). Miners do not use the 

breakers to turn the equipment on and off. (Tr. 1349). He does not know how often the breaker 

must be reset. 

Mr. Peres testified that access to the motor control centers at the plants of Nelson 

Quarries is restricted. Padlocks are often placed on the doors when a plant is in operation; (Tr. 

1371 ). The only people allowed in the motor control trailer when the plant is operating are the 

leadman and himself. Repairs are performed when the generator is shut down. Breakers rarely 

kick off. 

I find that the Secretary established a violation. The gravity was low because the breakers 

are infrequently used and access to the trailer was limited. I find that a penalty of $40.00 is 

appropriate. 

4. On November 21, 2005, Inspector Barrington issued Citation No. 6317454 alleging a 

violation of section 56.12040. (Ex. G-119). The citation alleges, in part, that the operating 

controls inside the distribution boxes in the motor control room were installed so that they could 

not be operated without danger of contact with energized conductors and related terminals. After 

a conference, it was determined that an injury was unlikely but that any injury would likely be 

fatal. The negligence was moderate. The Secretary proposes a penalty of $60.00 for this citation. 

The parties agreed that I should base my decision on this citation on the evidence 

presented with respect to Citation No. 6317446. Based on that evidence, I find that the Secretary 

established a non-S&S violation of the safety standard. The wires and terminals for the circuit 

breakers were totally exposed. Circuit breakers are operating controls. The fact that the 

company had never been cited for this condition simply reflects that fact that its plants had never 

been subject to an electrical inspection. A penalty of $60.00 is appropriate. 

Q. CENT 2006-237-M, Plant 4. 

l. On November 16, 2005, Inspector Crelly issued Citation No. 6291254 alleging a 

violation of section 56.3130. (Ex. G-129). The citation alleges that the mining methods used in 

the pit were not compatible with the type and size of the equipment used. The face was about 30 

to 35 feet high on the north side of the pit and about 40 high on the south side. None of the 

equipment at the mine could reach more that 25 feet up the face. Inspector Crelly determined 

that an injury was reasonably likely and that any injury would likely be fatal. He determined that 

the violation was S&S and that the negligence was moderate. The safety standard provides, in 

30 FMSHRC 312 
part, that mining methods shall be used that will maintain wall, bank, and slope stability in places 

were people work or travel. The Secretary proposes a penalty of $247.00 for this citation. 

fuspector Crelly testified that Mr. Andres told him that the company did not have any 

equipment that could be used to scale the rock face. (Tr. 974). There were no benches along the 

highwall. The inspector said that, to comply with the standard, the company must bench the area 

or barricade the area around the foot of the highwall so that <lllY falling rock would not hit 

anyone. (Tr. 975). The company could also scale the face, but they did not have any equipment 

that could be used for such purposes. fustead, the company drilled and then shot the area. The 

inspector admitted that scaling is not mandatory. (Tr.1007-08). He designated this citation as 

S&S because miners are in the pit every day operating the loader and other equipment. These 

miners are frequently within a few feet of the face. Although pedestrians were not common, 

someone could be out of a vehicle checking the water pump. 

Mr. Peres testified that there was a Hitachi trackhoe that can reach up to 40 feet to scale a 

face. (Tr. 1054-55). A rammer can be attached to use for scaling. The quarry also keeps men 

and machinery back from the toe of the face. The company's evidence with respect to this 

citation is the same as it was for the related citation (No. 6291253) alleging a violation of section 

56.3200. 

I vacate this citation for the same reasons I vacated Citation No. 6291253. I find that the 

Secretary did not establish that miners worked or traveled under unstable highwalls. I note, 

however, that the company must either scale down loose and unconsolidated material or it must 

ensure that berms or rock are present to keep miners out of the zone of danger. 

2. On November 16, 2005, fuspector Crelly issued Citation No. 6291260 alleging a 

violation of section 56.11003. (Ex. G-130). The citation alleges that the ladder on the southwest 

side of the 615 screen was not maintained in safe condition. fuspector Crelly determined that an 

injury was reasonably likely and that any injury would likely be fatal. He determined that the 

violation was S&S and that the negligence was moderate. The safety standard provides that 

ladders shall be of substantial construction and maintained in good condition. The Secretary 

proposes a penalty of $247.00 for this citation. 

The inspector testified that the ladder was about eight feet tall and had holes in the rail 

that were about two by two inches. The ladder is used to access the second layer of screens. (Tr. 

979). The hole is where a rung used to be. The ladder was of substantial construction but it was 

not maintained in good condition because it was bent and it had a hole in it. fuspector Crelly 

testified that if the ladder continued to be used, it was reasonably likely that someone would 

suffer a serious or fatal injury. (Tr. 981 ). The ladder was tied off in place. (Tr. 982, 1015). 

Peres testified that the ladder was strong enough to hold a man. (Tr. 1056-57). The holes 

in the sides of the ladder were above the last rung used by miners so the holes were not subjected 

to the weight of miners using the ladder. Andres agreed with Peres. (Tr. 1182). 

30 FMSHRC 313 
I find that the citation should be vacated. The holes were where a rung used to be and 

they were not as large as the inspector believed. The holes were above any area where miners 

would put their weight. (Ex. G-130c ). The ladder was of substantial construction and was in 

good enough condition for its intended use. It was secured in place and it did not present a safety 

hazard. 

3. On November 16, 2005, fuspector Crelly issued Citation No. 6291266 alleging a 

violation of section 56.11001. (Ex. G-131 ). The citation alleges that safe access was not 

provided to the south side of the main generator trailer in that a piece of sheet metal that was 21 

inches wide was being used as a walkway into the trailer that was about 4 feet above the ground. 

fuspector Crelly determined that an injury was reasonably likely and that any injury would likely 

be permanently disabling. He determined that the violation was S&S and that the negligence was 

moderate. The Secretary proposes a penalty of $203.00 for this citation. 

The inspector testified that the sheet metal was a quarter of an inch thick, about 21 inches 

wide, and six feet long. (Tr. 983; Ex. G-131 c ). This piece of metal was not designed for this 

purpose and it did not provide safe access. He testified that he did not know why people would 

be entering the trailer at this location because there was another door provided. That door had 

stairs with handrails. He saw Mr. Andres use the cited entrance. He believes that the violation 

was S&S because someone could stumble and fall while walking on the sheet metal. The cited 

door was the back door to the trailer near the radiator of the generator. 

Peres testified that the entrance to the generator trailer is on the side. That entrance has a 

stairway with handrails. The piece of metal cited by the inspector was there because two 

employees at the quarry had a pet cat at the mine site. (Tr. 1061-62). The cat slept near the 

generator because it was warm. These employees put the sheet metal by the generator to make it 

easier for the cat to get into the trailer. He never saw anybody using this "catwalk." (Tr. 1080). 

Mr. Andres denied that he ever walked or stepped on the sheet metal. (Tr. 1168). It was very 

muddy the day of the inspection with the result that mud would have been on the sheet metal if 

anyone had walked on it. 

I credit the witnesses of Nelson Quarries on this citation. The photograph shows that the 

piece of sheet metal was not a means of access for miners to enter the trailer. (Ex. G-131 c ). The 

company provided safe access via the stairs. I vacate this citation. 

4. On November 17, 2005, fuspector Barrington issued Citation No. 6317 459 alleging a 

violation of section 56.12025. (Ex. G-132). The citation alleges that the grounding system on 

the 509 conveyor was not properly maintained. The grounding circuit was open when tested with 

an ohmmeter. fuspector Barrington determined that an injury was reasonably likely and that any 

injury would be fatal. The citation was designated as S&S and the negligence was moderate. 

The Secretary proposes a penalty of $247.00 for this citation. 

30 FMSHRC 314 
The inspector testified that the grounding circuit was open (disconnected) so that there 

was no ground at all. (Tr. 1319). He determined that the violation was S&S because it was 

reasonably likely that someone would be seriously injured in the event of a fault in the 480 volt 

system. 

For the reasons discussed above with respect to the other grounding citations issued under 

section 56.12025, this citation is affirmed. A penalty of $250.00 is appropriate. 

5. On November 17, 2005, Inspector Barrington issued Citation No. 6317460 alleging a 

violation of section 56.12004. (Ex. G-133). The citation alleges that the insulation on the feeder 

cable to the 30 amp Westinghouse breaker and Cutler Hammer line starter was damaged from 

excessive heat. The copper conductor was exposed in places. Inspector Barrington determined 

that an injury was unlikely but that any injury would be fatal. The citation was designated as 

non-S&S and the negligence was moderate. The Secretary proposes a penalty of $60.00 for this 

citation. 

Inspector Barrington testified that it appeared that the insulation had been damaged by 

excessive heat. (Tr. 1329; Ex. G-133e). Mr. Peres believes that the insulation was chipped when 

the wire was moved at some point. (Tr. 1375). 

I affirm the citation. Copper wire was visible whether the insulation was damaged by 

heat or it was chipped off. A penalty of $60.00 is appropriate. 

6. On November 17, 2005, Inspector Barrington issued Citation No. 6317456 alleging a 

violation of section 56.12008 .. (Ex. G-134). The citation alleges that the feeder cable for the No. 

14 distribution box entered through a compression bushing that was not properly maintained. 

The gland locking nut had vibrated loose and was hanging from the leads. Inspector Barrington 

determined that an injury was unlikely but that any injury would be fatal. The citation was 

designated as non-S&S and the negligence was moderate. The Secretary proposes a penalty of 

$60.00 for this citation. 

The inspector testified that .the locking nut was hanging loose. (Tr. 1333-35;.Ex. G134c ). The bushing was metal and he was concerned that vibration could wear down the 

insulation on the conductors without the nut in place. Peres testified that the bushing provided 

protection without the lock nut in place. (Tr. 1376). 

The locking nut helps keep the cables in place and prevents vibration from damaging the 

insulation on the conductors. There is no indication that the insulation had been damaged. I find 

that the Secretary established a violation, but it was not serious. A penalty of $40.00 is 

appropriate. 

7. On November 17, 2005, Inspector Barrington issued Citation No. 6317451 alleging a 

violation of section 56.141 OO(b ). (Ex. G-135). The citation alleges that the housing on the 

30 FMSHRC 315 
Cummins generator was not maintained in good condition. The top of the housing had an open 

exit gland that exposed the windings in the generator to moisture and dust. Inspector Barrington 

determined that an injury was unlikely but that any injury would be fatal. The citation was 

designated as non-S&S and the negligence was moderate. The Secretary proposes a penalty of 

$60.00 for this citation. 

Inspector Barrington testified that because of the dusty conditions, dirt, dust and moisture 

could enter the opening in the housing. The internal windings could be affected creating a safety 

hazard. The dust and dirt could cause the generator to get too hot. He considered the cited 

condition to be a defect affecting safety. (Tr. 1336-39, 1341; Ex. G-135d). The generator was 

not operating at the time of his inspection. Mr. Peres testified that when the generator is 

operating, air is forced out of the hole by the cooling fan so any dust present would be blown out. 

(Tr. 1377). 

The standard requires that any defects that affect safety be corrected in a timely manner to 

prevent the creation of a hazard to persons. I find that the Secretary did not establish that the 

opening was a defect that affected safety. The generator was in a trailer and there was no proof 

that dust and dirt would enter the hole or damage the windings in any way. This citation is 

vacated. 

8. On November 17, 2005, Inspector Barrington issued Citation No. 6317456 alleging a 

violation of section 56.12025. (Ex. G-132). The citation alleges that the grounding system on 

the 207 bin conveyor was not maintained as required. When tested, the grounding system was 

open. Inspector Barrington determined that an injury was unlikely but that any injury would 

likely be fatal. He determined that the violation was S&S and that the negligence was moderate. 

The Secretary proposes a penalty of $247.00 for this citation. 

The parties agreed that I should base my decision on this citation on the evidence 

presented with respect to Citation Nos. 6317464 and 6317465. I find that the Secretary 

established an S&S violation of the safety standard. I credit the inspector's testimony that he 

correctly tested the grounding systems during his inspections. Although corrosion may have 

created the problem, the hazard was still present and serious. It was reasonably likely that 

someone would be injured or electrocuted ifthe condition were not corrected. A penalty of 

$250.00 is appropriate. 

II. APPROPRIATE CIVIL PENALTIES 

Section l lO(i) of the Mine Act sets out six criteria to be considered in determining 

appropriate civil penalties. Plant 1 had a history of 12 paid violations in the two years prior to 

November 16, 2005, Plant 2 had a history of 5 paid violations in the two years prior to October 5, 

2005, Plant 3 had a history of 6 paid violations in the two years prior to June 28, 2005, Plant 4 

had a history of21 paid violations in the two years prior to November 16, 2005, and Plant 5 had 

a history of 5 paid violations in the two years prior to October 26, 2005. (Ex. G-136). Most of 

30 FMSHRC 316 
these previous violations were non-S&S. Nelson Quarries is a rather small operator and its 

quarries are small. All of the violations were abated in good faith, except as noted. Nelson 

Quarries did not establish that the penalties assessed will have an adverse effect on its ability to 

continue in business. My gravity and negligence findings are set forth above. Ifl did not discuss 

gravity or negligence with respect to a citation, then the inspector's determinations are affirmed. 

Based on the penalty criteria, I find that the penalties set forth below are appropriate. 

III. ORDER 

Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

Citation/Order No. 30 C.F.R. § Penalty 

CENT 2006-151-M, Plant 4 

6291250 56.6130(a) $1,000.00 

6291251 56.6300(b) 1,500.00 

CENT 2006-178 -M, Plant 1 

6291635 56.14112(b) Vacated 

6291637 56.14100(a) Vacated 

6291642 56.11002 Vacated 

6291644 56.20003(a) Vacated 

6291645 56.14107(a) 100.00 

6291646 56.18012 50.00 

6291647 §109(a) of Act 60.00 

6291648 56.11002 Vacated 

6317464 56.12025 500.00 

6317465 56.12025 500.00 

CENT 2006-200-M, Plant 5 

6291590 56.14100(b) . 135.00 

6291591 56.14132(a) ·60.00 

6291569 56.14112(b) Vacated 

6291572 56.12004 60.00 

6291573 47.41(a) 40.00 

6291574 56.12004 60.00 

30 FMSHRC 317 
6291576 56.14107(a) 50.00 

6291578 56.14112(b) 60.00 

6291579 56.14112(b) 60.00 

6291580 56.4501 60.00 

6291581 56.14107(a) Vacated 

6291582 56.12004 60.00 

6291584 56.14107(a) 50.00 

6291585 56.20003(a) 60.00 

6291587 56.610l(a) 60.00 

6291588 56.4101 40.00 

6291592 56.14107(a) 60.00 

6291593 56.14112(b) 60.00 

6291594 56.14100(b) 60.00 

CENT 2006-201-M, Plant 5 

6291595 56.14101(a)(2) 625.00 

6291583 56.14107(a) 70.00 

6291589 56.14101(a)(2) 40.00 

6291586 56.9300(a) 40.00 

CENT 2006-202-M, Plant 1 

6291636 47.41(a) 40.00 

6291638 56.4104(b) 60.00 

6291639 47.41(a) Vacated 

6291640 56.4101 Vacated 

6291641 56.14107(a) 60.00 

CENT 2006-203-M, Plant 2 

6321288 56.14100(c) 800.00 

6290517 56.14109 100.00 

6317446 56.12040 100.00 

6291667 47.7(a) 100.00 

6290516 56.14107(a) 40.00 

6290520 56.14132(a) 40.00 

6290521 56.14100(b) 60.00 

6290522 56.14132(a) 40.00 

6290523 56.14100(b) 40.00 

6290524 56.6132(a)(4) 60.00 

30 FMSHRC 318 
6321289 56.14 lOO(b) 60.00 

6317429 56.6132(b) Vacated 

6317430 56.6132(a)(6) Vacated 

6317432 56.14107(a) 60.00 

6317436 56.14112(a)(l) Vacated 

6317437 56.14107(a) Vacated 

6317438 56.14112(a)(l) Vacated 

6317440 56.11002 60.00 

6317441 56.4130(b) 60.00 

6317442 56.11002 40.00 

CENT 2006-204-M, Plant 2 

6290519 56.1410l{a)(3) 10.00 

6317431 56.14107(a) Vacated 

6317433 56.14107(a) Vacated 

CENT 2006-206-M, Plant 4 

6291248 56.6130(a) 500.00 

6317458 56.12001 250.00 

6291249 56.6132(a)(6) 60.00 

6317453 56.12001 60.00 

CENT 2006-207-M, Plant 3 

6290611 56.14132(a) 40.00 

6290612 56.14132(a) 60.00 

6290614 56.6202(b)(l) 60.00 

6290615 56.14100(c) 60.00 

CENT 2006-208-M, Plant 3 

6290622 56.5001(a)/.5005 750.00 

6291604 56.14107(a) 60.00 

6291611 56.12006 60.00 

CENT 2006-228-M, Plant 2 

6317444 56.12001 250.00 

6317445 56.12006 250.00 

6317448 56.12025 60.00 

6317449 56.12025 250.00 

30 FMSHRC 319 
6317428 56.6132(a)(3) Vacated 

6317443 56.12018 60.00 

6317447 56.12008 60.00 

6317450 56.12008 60.00 

CENT 2006-229-M, Plantl and 3 

6291597 56.9315 Vacated 

6317462 56.12008 60.00 

6317463 56.12032 40.00 

CENT 2006-230-M, Plant 4 

6291253 56.3200 Vacated 

6291257 56.14 lOO(b) Vacated 

6291259 56.11001 60.00 

CENT 2006-231-M, Plant 3 

6317461 56.12040 60.00 

CENT 2006-233-M, Plant 4 

6317452 56.12002 40.00 

6317454 56.12040 60.00 

6317455 56.12025 60.00 

6317457 56.12025 60.00 

CENT 2006-237-M, Plant 4 

6291254 56.3130 Vacated 

6291260 56.11003 Vacated 

6291266 56.11001 Vacated 

6317459 56.12025 250.00 

6317451 56.14100(b) Vacated 

6317456 56.12008 40.00 

6317460 56.12004 60.00 

TOT AL PENAL TY $11,090.00 

30 FMSHRC 320 
Accordingly, the citations contested in these cases are AFFIRMED, MODIFIED, or 

VACATED as set forth above and Nelson Quarries, Inc., is ORDERED TO PAY the Secretary 

of Labor the sum of $11,090.00 within 40 days of the date of this decision. Upon payment of the 

penalty, these proceedings are DISMISSED. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Jennifer Casey, Esq., and Kristi Henes, Esq, Office of the Solicitor, U.S. Department of Labor, 

1999 Broadway, Suite 1600, Denver, CO 80202 (Certified Mail) 

Ronald Pennington, Conference & Litigation Representative, Mine Safety and Health 

Administration, P.O. Box 25367, Denver, CO 80225-0367 (First Class Mail) 

Paul M. Nelson, P.O. Box 334, Jasper, MO 64755 (Certified Mail) 

Kenneth L. Nelson, President, Nelson Quarries, Inc., P.O. Box 100, Gas, KS 66742-0100 

(Certified Mail) 

RWM 

30 FMSHRC 321 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NELSON QUARRIES, INC., 

Respondent 

DENVER, CO 80204-3582 

303-844-3577 /FAX 303-844-5268 

May 1, 2008 

CNIL PENALTY PROCEEDING 

Docket No. CENT 2006-237-M 

A.C. No. 14-01597-77364-02 

Plant 4 

ORDER CORRECTING DECISION 

Before: Judge Manning 

I issued my decision in this docket, along with 15 other dockets, on April 7, 2008. In this 

order I am correcting two clerical errors that appear in the decision. First, in numbered paragraph 

4 on page 60, the decision should be changed to reflect that Citation No. 6317 459 involved the 

grounding system on the 207 bin conveyor rather than the 509 conveyor. Second, numbered 

paragraph 8 on page 62 and the paragraph that follows it are both in error and are hereby deleted 

from the decision. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Kristi Henes, Esq, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 

1600, Denver, CO 80202 

Paul M. Nelson, P.O. Box 334, Jasper, MO 64755 

Kenneth L. Nelson, President, Nelson Quarries, Inc., P.O. Box 100, Gas, KS 66742-0100 

30 FMSHRC 322 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NELSON QUARRIES, INC., 

Respondent 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577/FAX 303-844-5268 

May 5, 2008 

CIVIL PENAL TY PROCEEDING 

Docket No. CENT 2006-178-M 

A.C. No. 14-01477-87956 

Plant 1 

ORDER CORRECTING DECISION 

Before: Juqge Manning 

I issued my decision in this docket, along with 15 other dockets, on April 7, 2008. In this 

order I am correcting an error that appeared in the decision. fu the discussion of Citation No. -

6317465 on page 19 of the decision, I described the citation as being of a significant and 

substantial nature ("S&S"). fu fact, prior to the hearing, the Secretary changed the designation to 

non-S&S and reduced the proposed penalty to $60.00. I hereby correct my decision to affirm the 

citation as modified by the Secretary and I assess a penalty of$60.00. As a consequence, the 

total penalty for this docket is reduced to $770.00 and the total penalty for all 16 dockets is 

reduced to $10, 650.00. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Kristi Henes, Esq, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 

1600, Denver, CO 80202 (via facsimile and U.S. Mail) 

Paul M. Nelson, P.O. Box 334, Jasper, MO 64755 (via facsimile and U.S. Mail) 

Kenneth L. Nelson, President, Nelson Quarries, Inc., P.O. Box 100, Gas, KS 66742-0100 

30 FMSHRC 323 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JEPPESEN GRAVEL, 

Respondent 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577/FAX 303-844-5268 

April 30, 2008 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 2006-184-M 

A.C. No. 13-02285-90174 

Docket No. CENT 2007-039-M 

A.C. No. 13-02285-97606 

Docket No. CENT 2007-067-M 

A.C. No. 13-02285-102681 

Docket No. CENT 2007-091-M 

A.C. No. 13-02285-104903 

Jeppesen Pits 

Appearances: Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department 

of Labor, Denver, Colorado, for the Petitioner; 

Before: 

Jay A. Jeppesen, Owner, Jeppesen Gravel, Sibley, Iowa, 

for Respondent. 

Judge Manning 

These cases are before me on three petitions for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"), 

against Jeppesen Gravel pursuant to sections 105 and 110 of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The cases involve 16 citations issued 

by MSHA under section 104( a) of the Mine Act at the pit operated by Jeppesen Gravel. The 

parties presented testimony and documentary evidence at the hearing held in Sioux City, Iowa. 

I. BACKGROUND 

Jay Jeppesen owns a large piece of property in Osceola County, Iowa, along the border 

with Minnesota. His home is on this property and he runs several businesses from this property. 

One of these businesses is Jeppesen Gravel, which he operates as the sole proprietor. The only 

employee of Jeppesen Gravel is his son, Alan. Jeppesen and his son do all of the physical work 

for Jeppesen Gravel. He has several areas on his property in which he digs. Sometimes he digs 

material and runs it through his plant to produce gravel for sale. He also produces gravel that is 

30 FMSHRC 324 
not processed in any way for use as ballast under concrete. Rock that is of a uniform size is not 

as important in this work. Jeppesen also digs up material used for fill. He calls these areas his 

"borrow pits." He digs out material from the earth and he transports it in the same condition to 

be used as fill. This material is often used in one of his other businesses. 

Jeppesen testified that his gravel pit is quite small and is operated as needed. He also 

does demolition work, hauls "black dirt," does grading work, snow plowing, and other similar 

jobs. Jeppesen also testified that most of the material that is dug from the ground on his property 

is not run through the plant, but is used as part of his demolition and building site work. (Tr. 

144). For example, he uses the material from his borrow pit to fill in the basement of a structure 

he has removed. 

Jeppesen stated that gravel was mined by his father on this property since the early 1960s 

and he took over this business years later. (Tr. 133). He has been in the gravel business for 30 

years. He testified that he had never been inspected by MSHA and had never heard of MSHA 

prior to the first time that MSHA Inspector William Owen first came to his operation in 2004. 

(Tr. 125, 133). Jeppesen testified that when the MSHA inspectors told him he had to stop 

working until they competed their inspection, he did not believe them and he did not know who 

they were. Over time, he had to educate himself on MSHA requirements and this required "a lot 

of change in attitude" on his part. (Tr. 126). 

MSHA and Jeppesen Gravel have had a rocky relationship since that first inspection in 

October 2003. A detailed account of this relationship is set forth below because several of the 

citations were issued for harassing MSHA inspectors and impeding MSHA inspections. 

William Owen, the supervisory inspector in MSHA's Fort Dodge, Iowa, office, testified 

that MSHA first became aware of Jeppesen's operation in October 2003 when another gravel 

operator in the area asked an MSHA inspector if MSHA was aware of Jeppesen's pit. (Tr. 13). 

Belinda Parsons, MSHA's field service person, contacted Jay Jeppesen to set up an appointment 

to meet with him so that a legal identity form could be filled out, training plans could be 

established, and "the basics" could be started. (Tr. 14). When Ms. Parsons traveled to the pit at 

the appointed time, nobody was there and she could not find Mr. Jeppesen. She left some written 

material for him. The following day, Ms. Parsons called the pit and talked to Mrs. Jeppesen to 

reschedule their appointment. Mrs. Jeppesen stated that Jeppesen Gravel was not interested in 

rescheduling the appointment and that "they didn't have any need to deal with MSHA." (Tr. 15). 

The following spring, Inspector Jim Hines traveled to the Jeppesen pit to talk to Mr. 

Jeppesen. Mr. Jeppesen was operating. a loader when Inspector Hines arrived. Inspector Hines 

told Mr. Jeppesen that he was there to get the legal identity form filled out, to start getting him 

"in line with the requirements," and that MSHA would conduct a compliance assistance visit 

("CAV"). (Tr. 16). At this point, Mr. Jeppesen became upset and told Hines that he was not 

interested and that he did not want to do any of these things. Inspector Hines then left the area. 

30 FMSHRC 325 
In May 2004, Inspector Owen visited the Jeppesen pit with Inspector Jeffrey Bagwell. 

The property is quite large and they did not see anyone there when they first arrived. When the 

inspectors saw a truck traveling down a road in another area on the property, they got in their 

vehicle and drove to where the truck had stopped. Mr. Jeppesen got out of the truck and 

Inspector Owen introduced himself and told Jeppesen why he was there. Mr. Jeppesen 

questioned Inspector Owen's right to be there. Jeppesen explained that he did not have any 

employees and that he was exempt. Inspector Owens told Jeppesen that he was not exempt from 

the requirements of the Mine Act and proceeded to explain that he needed to fill out a legal 

identity report and that MSHA would perform a CAV. Inspector Owens testified that Mr. 

Jeppesen became angry and asked the inspectors to leave. When Inspector Owen asked Mr. 

Jeppesen ifhe was denying MSHA entry to the mine, Jeppesen replied "yes." (Tr. 21). The 

inspectors then explained that it would not be in Jeppesen's best interest to deny MSHA entry to 

the mine because MSHA was not going to go away. Mr. Jeppesen "became more upset" and told 

the inspectors "to leave him alone and get off the property." Id. The inspectors then left the 

mme. 

Inspector Owen wrote up a denial of entry order and then reentered the mine to talk to 

Mr. Jeppesen again to see if he would reconsider. Owen explained that he had the authority to 

issue a withdrawal order that would shut down his operation. Mr. Jeppesen became angry again 

and told the inspectors to get off his property. After talking to the MSHA District Office, he 

waited for Mr. Jeppesen's truck on the public road at the entrance to the pit. He attempted to 

serve Jeppesen with the denial of entry order. Mr. Jeppesen stopped his truck, but refused to take 

the papers the inspector wanted to hand him. These papers included the order, a legal identity 

report to be filled out, and other material. This paperwork was mailed to the pit the next day, but 

the material came back as "denied." MSHA tried to mail this material a second time but 

Jeppesen Gravel again refused to accept it. 

The Department of Labor's Office of the Solicitor contacted Jeppesen Gravel to get 

consent to inspect the mine. When the Solicitor's office was not successful, counsel filed an 

application for a consent judgment with the United States District Court for the Northern District 

of Iowa. Counsel was apparently successful in getting Mr. Jeppesen to sign the consent 

judgment. (Ex. G-3). 

On June 28, 2005, Inspector Owen returned to the property with Inspector Tony Runyon 

to conduct a CAV. Mr. Jeppesen was operating a front-end loader and had just dumped material 

into the feeder. The diesel generator was powering the plant, which was operating at that time. 

Mr. Jeppesen was the only person at the plant. When the inspector told Mr. Jeppesen that he was 

there to conduct an inspection, he became angry. He shut down the loader and the plant. Owen 

reminded Jeppesen that the parties had entered into a consent judgment that had been filed with 

the U.S. District Court wherein Jeppesen agreed to allow MSHA to inspect the pit. (Tr. 24; Ex. 

G-3). Inspector Owens testified that Jeppesen got into his truck and just said, "inspect." (Tr. 

25). Inspector Owen terminated the previous denial of access order of withdrawal and told 

Jeppesen that he needed someone to operate the mobile equipment. Mr. Jeppesen did not say 

30 FMSHRC 326 
much during the inspection and, according to Inspector Owen, he was not cooperative. He would 

not operate the mobile equipment so that the brakes could be checked. Instead, Mr. Jeppesen left 

the mine site and the inspectors walked around and conducted an inspection as best they could. 

The inspector issued ten CA V notices of violation. 

The following day, when Jeppesen did not show up at the plant area, Inspector Owen 

called his house. Mrs. Jeppesen answered the phone and told him that he had left for the day. 

The inspector asked her to tell Mr. Jeppesen to call him so that they could complete the CA V 

inspection. Mr. Jeppesen never returned his call. The inspectors went to the repair shop/garage 

{the "shop"), the lights were on and there was a radio playing but they could not find anyone. 

On the third day, when Inspector Owen called Mr. Jeppesen, his wife told him that he had 

left for the day. The inspector told Mrs. Jeppesen that he needed to complete the inspection. 

Later that day, Mrs. Jeppesen called Inspector Owen to tell him that Mr. Jeppesen would not be 

available that day. After looking around some more, the inspectors left the property. The CA V 

notices as well as other materials were sent to Mr. Jeppesen via Federal Express. (Tr. 27-28). 

In September 20, 2005, Inspectors Owen and Ellis traveled to the Jeppesen Pit to conduct 

a regular inspection. When they arrived, it was obvious that the plant had been in operation 

because there were changes in equipment and the setup of the plant and there were changes in the 

stockpile products. The inspectors documented what they saw in a series of photographs. {Tr. 

29; Ex. G-1). They used the photographs to document hazardous conditions. Owen testified that 

none of these conditions would require a great deal of money to repair or fix. {Tr. 31 ). Shortly 

after the inspectors arrived, two dump trucks pulled in bearing the name "Jeppesen Gravel." 

When Mr. Jeppesen got out of one of the trucks, Inspector Owen told him that they were there to 

conduct a regular inspection. Mr. Jeppesen replied, "We're not working today." {Tr. 32). In 

response, Inspector Owen asked Jeppesen ifhe would mind walking around the plant with him. 

Jeppesen declined the offer and both trucks left the property. The two inspectors completed as 

much of the inspection as they could without anyone present to operate mobile equipment. 

The following day, Inspector Owen returned to the mine and called Mr. Jeppesen at 

home. His wife told the inspector that he had left for the day. The inspector called Jeppesen's 

cell phone and told him that MSHA needed to complete the inspection by having someone there 

to operate mobile equipment. The lights were on in the shop, a radio was playing, and the door 

was open, but nobody was present. 

On September 22, 2005, Inspector Owen returned to the mine. He again asked Mrs. 

Jeppesen to have Mr. Jeppesen call him. When Owen went to the plant, a loader was loading 

trucks at the stockpiles and Mr. Jeppesen was in a backhoe. Jeppesen got out of the backhoe, 

walked to his truck, and proceeded to drive away. Before Jeppesen left, the inspector had a brief 

conversation with him asking whether he would accept the paperwork and also walk around the 

plant with him. Mr. Jeppesen refused. The inspector left the citations and other paperwork at the 

plant. Another copy of these documents was mailed to the mine. Included with these documents 

30 FMSHRC 327 
was a letter from Gregory Tronson of the Secretary's Office of the Solicitor warning Jeppesen 

Gravel that if it fails to cooperate with MSHA inspectors, the Department of Labor will file suit 

to enforce the consent judgment (Ex. G-3). 

On October 19, 2005, Inspectors Owen and Runyon returned to the pit to terminate 

citations and conduct a follow-up inspection. (Tr. 43). There was nobody at the site when the 

inspectors arrived but the conditions had changed since their September inspection. It was 

obvious to the inspectors that the plant had been operated since their previous inspection. The 

engine on the loader was warm. (Tr. 46). They took photographs of the plant. (Tr. 44; Ex. G14). They also looked at the hazardous conditions that they had previously cited and wrote up 

section 104(b) orders for conditions that had not been abated. Next, they drove to the shop and 

saw Mr. Jeppesen leaving the area in a pickup truck. 

Inspector Owen traveled to the pit again on January 12, 2006. Accompanying him was 

Assistant United States Attorney Martha Fagg. They had made an appointment with Mr. 

Jeppesen to meet on that day. Ms. Fagg was present to see if she could help resolve the 

difficulties that had arisen between MSHA and Jeppesen Gravel. Owen testified that she wanted 

"to let [the Jeppesens] know what some of their options were to get into compliance and move 

the whole procedure in a positive manner." (Tr. 71). MSHA had not been able to complete its 

inspection of Jeppesen Gravel because, for example, it had not allowed inspectors to test the 

braking systems on mobile equipment and to review its records on training, workplace 

examinations, and electrical grounding. A United States Marshal and a county deputy were also 

present. They caught up with Mr. Jeppesen at the pit. Ms. Fagg talked to Jeppesen and described 

some of his options. For example, she explained the process for contesting citations. She also 

stated that MSHA had estimated that it would cost Jeppesen about $1,500 to correct the 

conditions that had been cited by MSHA during the previous inspection. Jeppesen said that he 

did not have $1,500. When Mr. Jeppesen questioned whether it would cost him $1,500 every 

time MSHA inspected his facility, the meeting became more confrontational. Inspector Owen 

reviewed MSHA's small mines booklet to show Jeppesen the steps necessary to come into 

compliance. When Owen asked about looking at Jeppesen's records, Mr. Jeppesen replied that 

he did not have any records that were ready for review. (Tr. 75). He also refused to walk around 

the mine so that Inspector Owen could show him the conditions that needed correction. When 

Mr. Jeppesen made it clear that he was not interested in talking about safety issues any further, 

the inspection party left the mine. 

The next day, Mr. Jeppesen called Ms. Fagg and asked for copies of citations that he had 

refused to take during the earlier inspections. Inspector Owen responded to this request and 

included a cover letter in which he summarized some of the steps that Jeppesen needed to take to 

come into compliance with MSHA regulations and standards. (Tr. 77; Ex. G-68). 

On June 6, 2006, Inspector Jeffrey Bagwell inspected the Jeppesen property along with 

Assistant District Manager Herald Holeman. They were there to conduct a CA V and to follow 

up on previously issued citations. The district had agreed that MSHA would conduct another 

30 FMSHRC 328 
CA V and this visit had been previously scheduled with Mr. Jeppesen. (Tr. 83). Although there 

was no one around when he first arrived, Mr. Jeppesen, his wife and his adult daughter, Katie 

Jeppesen, arrived soon thereafter. As he began his CAY inspection, he encountered an 

unguarded tail pulley. Bagwell explained to Katie Jeppesen how fatal accidents can occur as a 

result of unguarded tail pulleys. Mr. Jeppesen came up and accused the inspector of trying to 

scare his daughter. Mr. Holeman intervened and tried to explain that Bagwell was not trying to 

scare anyone but was trying to educate everyone. Mr. Jeppesen became verbally aggressive with 

Mr. Holeman, walked up to him and touched him. (Tr. 84). Holeman told Jeppesen that his 

behavior could be considered as "trying to intimidate and harass a federal mine inspector." (Tr. 

84, 91-92). When Mr. Jeppesen continued to yell at him, Inspector Bagwell was instructed to 

issue a section 103 citation for intimidating a federal mine inspector, which he did. (Tr. 85; Ex. 

G-70). Inspectors Bagwell and Holeman were set to leave the mine when Jeppesen calmed down 

and said that he would allow the inspection to continue. Mr. Jeppesen accompanied the 

inspectors on the inspection and was cooperative with them. 

At one point during this inspection, Bagwell went to his vehicle to get an electrical book. 

Holeman used this opportunity to write down some notes on the day's activities. Katie Jeppesen 

approached him and demanded to know what he was writing down. When he would not reveal 

his exact words, Mr. Jeppesen ordered Holeman to go to his vehicle. Holeman explained that he 

was there to help Inspector Bagwell with his CAV inspection. (Tr. 93-94). Inspectors Bagwell 

and Holeman decided that, since Bagwell seemed to have a better relationship with Mr. Jeppesen, 

Inspector Bagwell would continue the CA V inspection and Holeman would remain in his vehicle 

and observe the inspection. 

On July 19, 2006, Inspector Jeffrey Hornbeck traveled to the pit with Inspector Owen. 

He was there to conduct a regular inspection and to terminate any outstanding citations. The 

inspectors saw Jay Jeppesen's son, Alan Jeppesen, in the pit area. Because Alan Jeppesen was 

getting ready to operate a loader, the inspector asked him to check the brakes, the backup alarm, 

and the horn. (Tr. 99). Alan refused, got off the loader without setting the parking brake, and 

left the area. Inspector Hornbeck took photographs and conducted his inspection. Later during 

this inspection, Jay Jeppesen arrived and ordered both inspectors off his property. (Tr. 108). 

When Inspector Owen explained that they were there to conduct a regular inspection, Jeppesen 

seemed very upset and did not talk. Because they wanted to avoid any altercations, the inspectors 

left the property. Inspector Hornbeck issued a section 104(a) citation alleging a violation of 

section 103(a) of the Mine Act for refusing to allow the inspection to continue. (Tr. 109; Ex. G79). 

On August 24, 2006, Inspector Jeffrey Schaaf accompanied Inspector Owen on a 

compliance follow-up visit to Jeppesen Gravel. They were accompanied by an Osceola County 

Deputy. There was nobody at the mine but it appeared that mining activity had recently 

occurred. The inspector took photographs of the mine site. (Tr. 115-16; Ex. G-82). The 

inspector issued some section 104(b) orders of withdrawal. When Jay Jeppesen arrived, he was 

upset that Inspector Owen was present. Inspector Schaaf asked to inspect the mobile equipment, 

30 FMSHRC 329 
but Jeppesen refused to operate the equipment. The inspectors explained why they were there 

and that the loader needed to be operated to check the brakes, horn, and backup alarm. When 

Jeppesen continued to refuse to operate the loader and told Inspector Owen to leave the property, 

Inspector Schaaf issued a section 104(b) order for the operator's refusal to comply with the denial 

of entry citation. {Tr. 121; Ex. G-88). 

Mr. Jeppesen did not seriously dispute these events, although he seemed to believe that 

many of the disputes were instigated by MSHA's aggressive actions. He testified that, as of the 

date of the hearing, Jeppesen Gravel is "virtually in compliance." Id. He had to remove mobile 

equipment that was not in compliance with MSHA requirements and rent newer equipment. He 

testified that he has spent about $8,000 to get into compliance and most of that is on his personal 

credit card. Jeppesen testified that Mike Jackley from MSHA's small mines office was 

immensely helpful. Jeppesen testified that he completely "redid" his operation in the spring of 

2006 to come into compliance MSHA' s regulations. 

II. DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW 

In 1979, MSHA entered into an interagency agreement with the Department of Labor's 

Occupational Safety and Health Administration ("OSHA") to provide some guidance to the 

regulated community on the jurisdiction of these two agencies ("Interagency Agreement"). 

(http://www.msha.gov/regs/1979mshaoshammu.htm). In section B(7) of the Interagency 

Agreement, the following definition is provided: 

"Borrow Pits" are subject to OSHA jurisdiction except those 

borrow pits located on mine property or related to mining. (For 

example, a borrow pit used to build a road or construct a surface 

facility on mine property is subject to MSHA jurisdiction). 

"Borrow pit" means an area of land where the overburden, 

consisting of unconsolidated rock, glacial debris, other earth 

material overlying bedrock is extracted from the surface. 

Extraction occurs on a one-time only basis or only intermittently as 

need occurs, for use as fill materials by the extracting party in the 

form in which it is extracted. No milling is involved, except for the 

use of a scalping screen to remove large rocks, wood and trash. 

The material is used by the extracting party more for its bulk than 

its intrinsic qualities on land which is relatively near the borrow 

pit. 

MSHA has determined that some of areas on Jeppesen's property are actually borrow pits that are 

not subject to MSHAjurisdiction. These borrow pits are separate from the pits used to mine 

sand and gravel. Pits used to mine gravel, whether the material is treated at the plant or not, are 

subject to MSHAjurisdiction. 

30 FMSHRC 330 
At the hearing, Mr. Jeppesen presented several of his federal tax returns to show that he is 

virtually broke. These returns show that his adjusted gross income was $11,347 in 2006, was 

$30,256 in 2005, and was $7,995 in 2004. (Tr. 140). His Schedule C for 2006 shows a profit 

of $9,100 on his business. (Tr. 141). His Schedule C for 2005 shows a profit of$29,800. His 

Schedule C for 2003 shows a net loss of $28,500. (Tr. 142). Be also introduced a letter from his 

bank showing that he has about $254,000 in outstanding loans from the bank. (Ex. R-1). 

A. Citations Issued. 

Jeppesen Gravel was issued 16 citations between September 2005 and July 2006, as 

follows: 

1. On September 20, 2005, Inspector Owen issued Citation No. 6154828 alleging a 

violation of section 56.14130(a)(3). (Exs. G-4, G-6). The citation alleges that a Caterpillar 966C 

front-end loader, which was manufactured in 1970, was not provided with a roll-over protective 

structure ("ROPS"). It also had a seatbelt that was not properly installed and maintained. 

Inspector Owen determined that an injury was reasonably likely and that any injury could 

reasonably be expected to be fatal. He determined that the violation was of a significant and 

substantial nature ("S&S") and that the negligence was moderate. The inspector determined that 

the violation was serious because the loader travels on the feed ramp and on rock stockpiles and 

is therefore subject to a rollover hazard. (Tr. 39). The safety standard provides that ROPS and 

seatbelts shall be installed on wheel loaders. The safety standard also requires that seatbelts be 

maintained in a functional condition and replaced when necessary to assure proper performance. 

The Secretary proposes a penalty of $124.00 for this citation. 

2. On September 20, 2005, Inspector Owen issued Citation No. 6154829 alleging a 

violation of section 56.9301. (Exs. G-7, G-9). The citation alleges that adequate berms were not 

provided on the sides of the ramp on the oversize rock pile, which is used by the front-end 

loader. The ramp was about 6 feet high, 35 feet long, and 12 feet wide. The berm was 16 inches 

high on the east side and 4 inches high on the west side. Inspector Owen determined that an 

injury was unlikely but that any injury could reasonably be expected to be fatal. He determined 

that the violation was not S&S and that the negligence was moderate. The inspector observed 

loader tracks near the edge of the ramp on the pile. (Tr. 41). The safety standard provides that 

berms or similar impeding devices shall be provided at dumping locations where there is a 

hazard of overtravel or overturning. The Secretary proposes a penalty of $60.00 for this citation. 

3. On September 20, 2005, Inspector Owen issued Citation No. 6154830 alleging a 

violation of section 56.12018. (Exs. G-10, G-12). The citation alleges that the individual circuit 

breakers on the free standing control panel were not labeled to show which circuit they 

controlled. In the event of an emergency, persons may not be able to determine which circuit to 

disconnect. Inspector Owen determined that an injury was unlikely but that any injury could 

reasonably be expected to be permanently disabling. He determined that the violation was not 

S&S and that the negligence was moderate. The inspector testified that, although Mr. Jeppesen 

30 FMSHRC 331 
is likely to be aware what each switch controls, others may not. (Tr. 42). The safety standard 

provides that principal power switches shall be labeled to show which units they control. When 

Inspector Owen returned on October 19, 2005, he discovered that no effort had been made to 

abate the cited condition. Consequently, he issued Order No. 6154840 under section 104(b) of 

the Mine Act. (Ex. G-15). The Secretary proposes a penalty of $237.00 for this citation. 

4. On September 20, 2005, Inspector Owen issued Citation No. 6154831 alleging a 

violation of section 56.14130(c). (Exs. G-18, G-20). The citation alleges that the Caterpillar 

936E front-end loader was not provided with a ROPS approval label. The loader was parked in 

the plant area but the tire tracks indicated that it had recently been used. Inspector Owen 

determined that an injury was unlikely but that any injury could reasonably be expected to result 

in lost workdays or restricted duty. He determined that the violation was not S&S and that the 

negligence was moderate. The inspector testified that the ROPS on the cab of the loader 

appeared to fit but, without the label, he could not be certain. (Tr. 41). The safety standard 

provides that all ROPS must have a permanent label designating the make and model number of 

the equipment for which the ROPS is designed. The Secretary proposes a penalty of $60.00 for 

this citation. 

5. On September 20, 2005, Inspector Owen issued Citation No. 6154832 alleging a 

violation of section 56.14107(a). (Exs. G-21, G-23). The citation alleges that the self-cleaning 

tail pulley on the dozer trap feeder conveyor was not guarded. The condition was in an area that 

is not normally traveled during plant operations, but the pulley was totally exposed. Inspector 

Owen determined that an injury was unlikely but that any injury could reasonably be expected to 

be fatal. He determined that the violation was not S&S and that the negligence was moderate. 

The inspector testified that, although contact with the tail pulley was not likely, the pulley was so 

open that someone could be drawn into it upon accidental contact. (Tr. 50). The safety standard 

provides that moving machine parts shall be guarded to protect people from contacting drive, 

head, tail, and takeup pulleys and other similar moving parts that can cause injury. When 

Inspector Owen returned on October 19, 2005, he discovered that no effort had been made to 

abate the cited condition. Consequently, he issued Order No. 6154841 under section 104(b) of 

the Mine Act. (Ex. G-24). The Secretary proposes a penalty of $271.00 for this citation. 

6. On September 20, 2005, Inspector Owen issued Citation No. 6154833 alleging a 

violation of section 56.12008. (Exs. G-26, G-28). The citation alleges that bushings were not 

provided where the power cord for the feeder conveyor motor exited the disconnect box on the 

conveyor framework and at the motor junction box. This same condition existed during the June 

2005 CA V inspection. Inspector Owen determined that an injury was unlikely but that any injury 

could reasonably be expected to be fatal. He determined that the violation was not S&S and that 

the negligence was moderate. The inspector testified that the outer jacket on the cable did not 

appear to be damaged but that the vibration of the machinery could damage the cable creating an 

electric shock hazard. (Tr. 52). The safety standard provides that power wires and cable shall 

enter metal frames of motors, splice boxes, and electrical components only through proper 

fittings and bushings. When Inspector Owen returned on October 19, 2005, he discovered that 

30 FMSHRC 332 
no effort had been made to abate the cited condition. Consequently, he issued Order No. 

6154842 under section 104(b) of the Mine Act. (Ex. G-29). The Secretary proposes a penalty of 

$291.00 for this citation. 

7. On September 20, 2005, Inspector Owen issued Citation No. 6154834 alleging a 

violation of section 56.14107(a). (Exs. G-32, G-34). The citation alleges that the tail pulley on 

the rock discharge conveyor for the screen plant was not guarded. The tail pulley was located at 

the top of a ladder providing access to the walkway for the screen plant. The tail pulley was 

about two feet above the walkway but the conveyor framework partially blocked access. This 

same condition existed during the June 2005 CA V inspection. Inspector Owen determined that 

an injury was unlikely but that any injury could reasonably be expected to be permanently 

disabling. He determined that the violation was not S&S and that the negligence was moderate. 

The inspector testified that, although contact with the tail pulley was not likely because it was 

behind structural steel, if someone were to come into contact with the moving parts he could be 

severely injured. (Tr. 56). When Inspector Owen returned on October 19, 2005, he discovered 

that no effort had been made to abate the cited condition. Consequently, he issued Order No. 

6154843 under section 104(b) of the Mine Act. (Ex. G-35). The Secretary proposes a penalty of 

$237.00 for this citation. 

8. On September 20, 2005, Inspector Owen issued Citation No. 6154835 alleging a 

violation of section 56.14107(a). (Exs. G-38, G-40). The citation alleges that the tail pulley on 

the sand discharge conveyor for the screen plant was not guarded. The tail pulley was about two 

feet above the ground and was partially guarded by location. This same condition existed during 

the June 2005 CA V inspection. Inspector Owen determined that an injury was unlikely but that 

any injury could reasonably be expected to be permanently disabling. He determined that the 

violation was not S&S and that the negligence was moderate. The inspector testified that the tail 

pulley was partially guarded due to the fact that it was located "within the confines of the 

machinery." (Tr. 57-58). When Inspector Owen returned on October 19, 2005, he discovered 

that no effort had been made to abate the cited condition. Consequently, he issued Order No. 

6154844 under section 104(b) of the Mine Act. (Ex. G-41 ). The Secretary proposes a penalty of 

$237.00 for this citation. 

9. On September 20, 2005, Inspector Owen issued Citation No. 6154836 alleging a 

violation of section 56.14107(a). (Exs. G-43, G-45). The citation alleges that the self-cleaning 

tail pulley on the portable conveyor feeding sand to the screening plant was not completely 

guarded. The sides and top were well guarded but the pulley was fully exposed from the rear. 

The opening was about 40 inches wide and 20 inches high and the pulley was recessed about 4 

inches. This same condition existed during the June 2005 CA V inspection. Inspector Owen 

detennined that an injury was unlikely but that any injury could reasonably be expected to be 

fatal. He determined that the violation was not S&S and that the negligence was moderate. The 

inspector testified that the exposed tail pulley was about 30 inches above the ground, but that the 

area is not normally traveled while the plant is operating. (Tr. 60). Because the opening was 

large, someone could be pulled into the pulley if contact were made. When Inspector Owen 

30 FMSHRC 333 
returned on October 19, 2005, he discovered that no effort had been made to abate the cited 

condition. Consequently, he issued Order No. 6154844 under section 104(b) of the Mine Act. 

(Ex. G-46). The Secretary proposes a penalty of $291.00 for this citation. 

10. On September 20, 2005, Inspector Owen issued Citation No. 6154837 alleging a 

violation of section 56.12008. (Exs. G-49, G-51 ). The citation alleges that bushings were not 

provided where the power cord for the rock discharge conveyor exited the disconnect box and at 

the junction box on the support leg of the screening plant. There were also 2 inches of inner 

conductors exposed on the power cord at the junction box on the support leg of the screening 

plant and there were 14 inches of exposed inner conductors on the power cords at the fused 

disconnect box. These same conditions existed during the June 2005 CAY inspection. Inspector 

Owen determined that an injury was unlikely but that any injury could reasonably be expected to 

be fatal. He determined that the violation was not S&S and that the negligence was moderate. 

The inspector testified that the copper conductors were not exposed at any location but that there 

was no mechanical protection where the outer jacket had been stripped away. (Tr. 62-63). When 

Inspector Owen returned on October 19, 2005, he discovered that no effort had been made to 

abate the cited condition. Consequently, he issued Order No. 6154846 under section 104(b) of 

the Mine Act. (Ex. G-52). The Secretary proposes a penalty of $291.00 for this citation. 

11. On September 20, 2005, Inspector Owen issued Citation No. 6154838 alleging a 

violation of section 56.12032. (Exs. G-55, G-57). The citation alleges that there was an opening 

in the plug-in panel at the rear of the portable generator exposing a person to the hazard of 

contacting the bus bars inside the panel. The opening was four inches in diameter and the bus 

bars were two inches behind the opening. The opening was below the generator controls. 

Inspector Owen determined that an injury was reasonably likely and that any injury could 

reasonably be expected to be fatal. He determined that the violation was S&S and that the 

negligence was moderate. The safety standard provides that inspection and cover plates on 

electrical equipment shall be kept in place at all times except during testing and repairs. The 

inspector testified that the controls to start the generator motor were on another side, but the 

controls to tum on the power were above the cited opening. (Tr. 65-66). The bus bars were just 

inside the opening. He believed that a serious injury was reasonably likely. When Inspector 

Owen returned on October 19, 2005, he discovered that no effort had been made to abate the 

cited condition. Consequently, he issued Order No. 6154847 under section 104(b) of the Mine 

Act. (Ex. G-58). The Secretary proposes a penalty of $354.00 for this citation. 

12. On September 20, 2005, Inspector Owen issued Citation No. 6154839 alleging a 

violation of section 56.4101. (Exs. G-61, G-63). The citation alleges that warning signs were 

not provided on the large fuel tank on the portable generator to prohibit smoking or the use of 

open flames. Inspector Owen determined that an injury was unlikely and that any injury would 

not result in lost work days. He determined that the violation was not S&S and that the 

negligence was low. The safety standard provides that readily visible signs prohibiting smoking 

and open flames must be posted where a fire or explosion hazard exists. The inspector testified 

that, because it would be rather obvious to anyone that the tank contained diesel fuel and the tank 

30 FMSHRC 334 
was not leaking, an injury was not likely. {Tr. 68). When Inspector Owen returned on October 

19, 2005, he discovered that no effort had been made to abate the cited condition. Consequently, 

he issued Order No. 6154848 under section 104(b) of the Mine Act. (Ex. G-64). The Secretary 

proposes a penalty of $94.00 for this citation. 

13. On June 6, 2006, Inspector Bagwell issued Citation No. 6181361 alleging a violation 

of section 103(a) of the Mine Act. (Ex. G-70). The citation alleges that the mine operator 

harassed and tried to intimidate a federal mine inspector while he was trying to conduct a 

compliance follow-up inspection. The mine operator "engaged in screaming and provoking 

comments." Inspector Bagwell determined that an injury was not likely and the violation would 

not result in any lost workdays. He determined that the violation was not S&S and that the 

negligence was high. Section 103(a) of the Mine Act provides that authorized representatives of 

the Secretary of Labor shall make frequent inspections of mines to determine whether there is 

compliance with health and safety standards. This section further provides that in fulfilling this 

responsibility under the Mine Act, the authorized representatives of the Secretary "shall have a 

right of entry to, upon, or through any ... mine." The inspector testified that, after he started the 

inspection, Jay Jeppesen started yelling at Assistant District Manager Holeman and then got in 

very close to him. (Tr. 84). He issued this citation based on Mr . .Jeppesen's behavior. Holeman 

testified that Jeppesen refused to shake his hand when he arrived. Later, Mr. Jeppesen started 

yelling at him and made physical contact with him. (Tr. 91). After Holeman warned Jeppesen 

that he could be issued a citation for harassing and intimidating a federal inspector, Jeppesen 

continued to scream at him. Holeman remained in his vehicle during the remainder of the 

inspection. The Secretary proposes a penalty of $275.00 for this citation. 

14. On July 19, 2006, Inspector Hornbeck issued Citation No. 6182485 alleging a 

violation of section 56.14130(h). (Exs. G-74, G-76). The citation alleges that the seat belt for 

the Caterpillar 966C front-end loader was not in functional condition. The female latch was 

rusted closed and the seatbelt could not be latched or unlatched. In addition, the straps for the 

seatbelt were attached to the seat itself and not to the mounting point on the loader. Inspector 

Hornbeck determined that an injury was reasonably likely and any injury could reasonably be 

expected to be fatal. He determined that the violation was S&S and that the negligence was high. 

The safety standard sets forth the requirements for seatbelt construction. The inspector testified 

that the seatbelt straps were not tethered to the frame of the loader and the belt buckle would not 

work. {Tr. 103). Before he arrived to inspect Jeppesen Gravel, he reviewed MSHA's file on 

Jeppesen Gravel in his office. He discovered that Citation No. 6154828 issued by Inspector 

Owen on September 20, 2005, for failing to have an operable seatbelt on this loader was 

terminated when Jeppesen removed the loader from mine property for use at its borrow pit. (Tr. 

104; Ex. G-72). As a consequence, he determined that Jeppesen's negligence was high because 

Mr. Jeppesen was told that he could not bring the loader back to the mine u.rltil the seatbelt was 

fixed. (Tr. 104-05). The Secretary proposes a penalty of $1,800.00 for this citation. 

15. On July 19, 2006, Inspector Hornbeck issued Citation No. 6182486 alleging a 

violation of section 56.14130(a). (Exs. G-76, G-77). The citation alleges that there was no 

30 FMSHRC 335 
ROPS on the Caterpillar 966C front-end loader and that the loader had been previously cited for 

this condition. The loader was being used to load delivery trucks from product stockpiles. 

Inspector Hornbeck determined that an injury was reasonably likely and any injury could 

reasonably be expected to be fatal. He determined that the violation was S&S and that the 

negligence was high. The inspector testified that the violation was very serious. (Tr. 106). As 

with the previous citation, this condition was cited previously and was terminated when the 

loader was removed to the borrow pit. As a consequence, he determined that Jeppesen' s 

negligence was high because Mr. Jeppesen was told that he could not bring the loader back to the 

mine until a ROPS was installed. (Tr. 104-05). The Secretary proposes a penalty of $1,800.00 

for this citation. 

16. On July 19, 2006, Inspector Hornbeck issued Citation No. 6182487 alleging a 

violation of section 103( a) of the Mine Act. (Ex. G-79). The citation alleges that the mine 

operator refused to allow an authorized representative to inspect his mine. fuspector Owen was 

with fuspector Hornbeck during the inspection. Mr. Jeppesen approached the MSHA inspectors 

in a pickup truck "driving erratically sliding to a stop exiting the vehicle shouting, "Bill Owen, 

you can't be here this is my property and I told you can't be here and get off my property." When 

Inspector Owen tried to tell Jay Jeppesen that he was denying entry to an authorized 

representative of the Secretary of Labor, Jeppesen told him to leave and not come back. 

Inspector Hornbeck determined that an injury was not likely and the violation would not result in 

any lost workdays. He determined that the violation was not S&S and that Jeppesen 

demonstrated reckless disregard. The inspector testified that he was concerned that there could 

be an altercation, given Mr. Jeppesen's angry demeanor. (Tr. 108). fuspectors Owens and 

Hornbeck left the property after the citation was written. The Secretary proposes a penalty of 

$1,000.00 for this citation. 

B. Discussion and Analysis 

Jeppesen Gravel did not introduce evidence to contradict the evidence presented by the 

Secretary other than to state that the crushing plant was not operating at the time of several 

MSHA inspections. (Tr. 123). Instead, it argues that it does not have any money to pay the 

proposed penalties. Jeppesen states that the MSHA inspectors have been uncooperative. The 

inspectors conduct CA V inspections, which should not involve any penalties, but when they 

returned, citations and penalties were issued. In his opening statement, Mr. Jeppesen stated that 

"from the very beginning, I have explained that getting into compliance is going to be a grave 

hardship for my family." (Tr. 6). MSHA is "making me choose between having a guard on an 

implement that only I can get caught in or not having good enough tires for my family to ride in." 

Id. He stated that if he had the money, he would gladly fix everything to MSHA's standards. 

I find that Jeppesen Gravel is a very small, seasonal sole proprietorship. The information 

submitted to MSHA by Jeppesen Gravel indicates that Jeppesen operated the pit and plant about 

16 hours in 2006. Although that figure is likely too low, there is no doubt that Jeppesen is an 

30 FMSHRC 336 
extremely small operation. Mr. Jeppesen does not have many assets and he has little money to 

pay penalties. 

Apparently, his pit was not known to MSHA until about 2003. Although the property is 

in Iowa, the main access road to the mine is along the Minnesota state line. Jay Jeppesen was 

hostile to MSHA from the beginning. I believe that he was being honest when he testified that he 

did not know who the inspectors were or what they were doing on his property the first few times 

they were there. Nevertheless, MSHA inspectors gave him plenty of opportunities to learn more 

about MSHA and its legal authority by September 2005, when the first citations at issue in these 

cases were issued. Moreover, when Inspector Owen arrived in January 2006 along with an 

Assistant United States Attorney and a United States Marshal, Mr. Jeppesen should have 

recognized that he could no longer refuse to cooperate with MSHA inspectors. Despite this 

warning, he continued to harass MSHA inspectors and impeded their lawful inspections. In 

addition, Mr. Jeppesen failed to take advantage of the CAV inspections because he did not make 

any effort to correct the deficiencies. As a consequence, citations were later issued for many of 

these same conditions. Moreover, he did not correct many of the hazardous conditions cited by 

MSHA until section 104(b) orders were issued. Finally, although Jeppesen abated Citation No. 

6154828, which involved a ROPS and seatbelt violation, by removing his Caterpillar 966C 

loader to his borrow pit, he later brought the loader back for use in the gravel pit without 

correcting the deficiencies. Mr. Jeppesen was his own worst enemy during these inspections. 

Nothing in the record suggests that the MSHA inspectors were overbearing, hostile, or 

overly aggressive. Indeed, it appears that they bent over backwards to try to inform Mr. Jeppesen 

about the requirements of the Mine Act and help him come into compliance. MSHA does not 

have the legal authority to exempt Jeppesen Gravel from the requirements of the Mine Act, so its 

inspectors had to take steps to get Jeppesen into compliance with the safety standards. It appears 

that only Mr. Jeppesen himself was put in danger as a result of the cited conditions, although his 

son was also apparently affected in some instances. 

Mr. Jeppesen must understand that the Federal Mine Safety and Health Review 

Commission and the courts have uniformly held that mine operators are strictly liable for 

violations of safety and health standards. See, e.g. Asarco v. FMSHRC, 868 F.2d 1195 (101

h Cir. 

1989). "[W]hen a violation of a mandatory safety standard occurs in a mine, the operator is 

automatically assessed a civil penalty." Id. at 1197. In addition, the Secretary is not required to 

prove that a violation creates a safety hazard, unless the safety standard so provides. 

The [Mine Act] imposes no general requirement that a violation of 

MSHA regulations be found to create a safety hazard in order for a 

valid citation to issue. If conditions existed which violated the 

regulations, citations [were] proper. 

Allied Products, Inc., 666 F.2d 890, 892-93 (51

h Cir. 1982)(footnote omitted). The negligence of 

the operator and the degree of the hazard created by the violation are taken into consideration in 

30 FMSHRC 337 
assessing a civil penalty under section 11 O(i). 30 U.S.C. § 820(i). Thus, a violation is found and 

a penalty is assessed even if the chance of an injury is not very great. 

The Commission interprets safety standards to take into consideration "ordinary human 

carelessness." Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (September 1984). In that 

case, the Commission held that the guarding standard must be interpreted to consider whether 

there is a "reasonable possibility of contact and injury, including contact stemming from 

inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness." Id. 

Human behavior can be erratic and unpredictable. For example, someone might attempt to 

perform minor maintenance or cleaning near an unguarded tail pulley without first shutting it 

down. In such an instance, the employee's clothing could become entangled in the moving parts 

and a serious injury could result. Guards are designed to prevent just such an accident. The fact 

that no employee has ever been injured by an unguarded tail pulley at Jeppesen Gravel's 

operation is not a defense because there is a history of such injuries at plants throughout the 

United States. "Even a skilled employee may suffer a lapse of attentiveness, either from fatigue 

or environmental distractions .... " Great Western Electric Co., 5 FMSHRC 840, 842 (May 

1983). For example, fatal accidents have occurred at small operations as a result of inadequately 

guarded tail pulleys. See Darwin Stratton & Son, Inc., 22 FMSHRC 1265 (Oct. 2000) (ALJ). 

I find that the Secretary established that Jeppesen Gravel violated the safety standards and 

section 103(a) of the Mine Act as alleged in the 16 citations at issue. I also uphold the S&S 

determinations of the inspectors. A violation is classified as S&S "if based upon the 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." National Gypsum Co., 3 FMSHRC 

822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission 

set out a four-part test for analyzing S&S issues. Evaluation of the criteria is made assuming 

"continued normal mining operations." US. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 

1984). The question of whether a particular violation is S&S must be based on the particular 

facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988). The Secretary 

must establish: (1) the underlying violation of the safety standard; (2) a discrete safety hazard, 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 Secretary is not required to show that it is 

more probable than not that an injury will result from the violation. US. Steel Mining Co., 18 

FMSHRC 862, 865 (June 1996). Citation Nos. 6154828, 6182485, and 6182486 were S&S and 

serious violations of the cited safety standards. The other citations were neither S&S nor serious. 

I am mindful of the fact that, in many instances, the only individual at risk from the hazards cited 

was Mr. Jeppesen himself. 

I am reducing the negligence of Jeppesen Gravel on those citations that were issued on 

September 20, 2005, where the company timely abated the condition. Thus, the negligence for 

Citation Nos. 6154828, 6154829, and 6154831 is reduced to "low" to reflect the fact that this 

30 FMSHRC 338 
was Jeppesen's first MSHA inspection. The inspectors' negligence findings with respect to the 

other citations are affirmed. 

The Commission has held that, when considering the ability to continue in business 

criterion in a case involving a sole proprietor, a judge must make findings regarding the effect of 

a penalty on the individual's ability to meet his financial obligations. Unique Electric, 20 

FMSHRC 1119, 1122-23 (Oct. 1998). In this case, I find that the evidence establishes that the 

penalties proposed by the Secretary will significantly affect Jay Jeppesen's ability to meet his 

financial obligations. (See, for example, Tr. 139-43). I have taken this criterion into 

consideration in assessing the penalties in these cases. 

III. APPROPRIATE CIVIL PENALTIES 

Section 1 lO(i) of the Mine Act sets forth six criteria to be considered in determining 

appropriate civil penalties. The record shows that one citation was issued prior to the citations at 

issue in these cases. As discussed above, Jeppesen Gravel is an extremely small mine operator. 

Only a few of the citations at issue in these cases were abated in good faith. As discussed above, 

Jeppesen Gravel demonstrated that the proposed penalties will affect its ability to continue in the 

sand and gravel business. My gravity and negligence findings are set forth above. Jay Jeppesen 

must understand that he should not expect to see such large reductions in penalties in future 

cases. I gave him the benefit of the doubt with respect to the negligence criterion because his 

experience with MSHA was limited. Based on the penalty criteria, I find that the penalties set 

forth below are appropriate. 

IV. ORDER 

Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

Citation No. 

CENT 2006-184-M 

6154830 

6154832 

6154833 

6154834 

6154835 

6154836 

6154837 

6154838 

6154839 

30 C.F.R. § 

56.12018 

56.14107(a) 

56.12008 

56.14107(a) 

56.14107(a) 

56.14107(a) 

56.12008 

56.12032 

56.4101 

30 FMSHRC 339 

Penalty 

$50.00 

50.00 

55.00 

50.00 

50.00 

55.00 

55.00 

60.00 

5.00 
CENT 2007-039-M 

6154828 

6154829 

6154831 

CENT 2007-067-M 

6181361 

CENT 2007-067-M 

6182485 

6182486 

6182487 

56.14130( a)(3) 

56.9301 

56.14130(c) 

103(a) Mine Act 

56.14130(h) 

56.14130(a) 

103 (a) of Mine Act 

TOTAL PENALTY 

50.00 

1.00 

1.00 

100.00 

200.00 

200.00 

500.00 

$1,482.00 

For the reasons set forth above, the citations and orders are AFFIRMED or MODIFIED, 

as set forth above. Jay Jeppesen, doing business as Jeppesen Gravel, is ORDERED TO PAY 

the Secretary of Labor the sum of $1,482 .00 within 40 days of the date of this decision. Payment 

should be sent to: U.S. Department of Labor, Mine Safety and Health Administration, P.O. Box 

790390, St. Louis, MO 63179-0390. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Gregory Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 

1600, Denver, CO 80202 (Certified Mail) 

Jay A. Jeppesen, 719 Eighth Street, Sibley, IA 51249 (Certified Mail) 

RWM 

30 FMSHRC 340 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SCP INVESTMENTS, LLC, 

Respondent 

March 31, 2008 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 2006-148-M 

A.C. No. 40-03268-80642 

Docket No. SE 2006-163-M 

A.C. No. 40-03268-82949 

Old County Quarry 

ORDER TO SHOW CAUSE 

These matters concern 12 citations that were issued as a result of an inspection of the 

Old County Quarry conducted by Mine Safety and Health Inspector (MSHA) Jeffrey Phillips on 

December 14, 2005. The cited violations have been corrected and the subject citations have been 

terminated. 

The Old County Quarry is a rock crushing facility operated by SCP Investments, LLC 

("SCP"). Pat Stone is the managing partner of SCP. According to Stone, the mine commenced 

operations in September 2005. Section 109(d) of the Federal Mine Safety and Health Act of 

1977, as amended, ("Mine Act") requires a mine operator to file with the Secretary of Labor 

(''the Secretary'') the name and address of the mine, as well as the name and address of the person 

who controls the mine. 30 U.S.C. § 819(d). Consistent with the statutory provisions of section 

109(d), Part 41 of the Secretary's regulations requires mine operators to file a Legal Identity 

Report Form within 30 days of the opening of anew mine. 30 C.F.R. §§ 41.10, 41.ll(a). 

At the time of Phillips' inspection, SCP had not filed the required Legal Identity Report 

Form registering the facility as an active mine. Consequently, on December 14, 2005, Phillips 

ordered Stone to leave the mine property rather than allow Stone to accompany him during the 

mine inspection, reportedly because it was too dangerous given Stone's lack of Part 46 miner 

training. 30 C.F.R. Part 46. Stone, on behalf of SCP, objects to not being allowed to remain on 

mine property during the inspection. 

30 FMSHRC 341 
Section 103(f) of the Mine Act provides, in pertinent part, "[s]ubject to regulations 

issued by the Secretary, a representative of the operator and a representative authorized by his 

miners shall be given an opportunity to accompany" an MSHA inspector during an inspection. 

30 U.S.C. § 813(f). Thus, the right to accompany an inspector during an inspection is an 

important right that may only be curtailed by the Secretary's regulations. Consolidation Coal 

Co., 16 FMSHRC 713, 718 (Apr. 1994). Therefore, in extraordinary circumstances, the 

Secretary may preclude walkaround rights of miners' representatives "where necessary to protect 

the safety of miners." Id. at 719. 

The Commission has rejected the failure to comply with MSHA filing requirements 

as a basis for denying section 103(f) "walkaround rights." Emery Mining Corporation, 

10 FMSHRC 276, 277 (Mar. 1988) (failure of a nonemployee miners' representative to file 

identifying information required by 30 C.F.R. Part 40 does not permit an operator to refuse the 

representative entry to its mine for purposes of exercising section 103( f) walkaround rights). 

The Commission has also rejected the denial ofwalkaround rights based on an operator's good 

faith reasonable belief that the area to be inspected was too dangerous to be entered. 

Consolidation Coal, 16 FMSHRC at 718-19. 

In view of the above, IT IS ORDERED that the Secretary SHOW CAUSE, in writing, 

why the subject citations should not be vacated because MSHA's mine inspection violated the 

provisions of section 103(f) of the Mine Act. Specifically, the Secretary should identify any 

regulation that identifies the circumstances that warrant the denial of a mine operator's right to 

accompany an inspector. In addition, the Secretary should provide any Interpretive Bulletin 

or Memorandum addressing her implementation of the walkaround rights in section 103(f). 

The Secretary also should specify, by specific reference to her regulations, the requisite training 

that must be completed by a miners' representative, or a mine operator, before he is allowed to be 

present during 3:11 inspection. Finally, the Secretary should identify, with specificity, the hazards 

that Stone would have been exposed to ifhe had accompanied Phillips on December 14, 2005, 

during this surface mine inspection. The Secretary may provide any additional information 

deemed appropriate. 

IT IS FURTHER ORDERED that the Secretary's response shall be filed within 21 days 

of this Order. IfSCP Investments,LLC, wishes to respond to the Secretary, it should do so 

within 14 days of receipt of the Secretary's response to this Order. 

Jerold Feldman 

Administrative Law Judge 

30 FMSHRC 342 
Distribution: (Certified Mail) 

Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

Pat Stone, SCP Investments, LLC, P.O. Box 82, Crab Orchard, TN 37723 

/rps 

30 FMSHRC 343 
30 FMSHRC 344 

G:.0< U.S. GOVERNMENT PRINTING OFFICE: 200~0--005/62702