i 

December 2014 

TABLE OF CONTENTS

COMMISSION DECISIONS 

12-10-2014 DAWES RIGGING & CRANE 

RENTAL 

LAKE 2011-206-M Page 3075 

12-19-2014 DQ FIRE & EXPLOSION 

CONSULTANTS, INC. 

WEVA 2011-602 Page 3083 

12-19-2014 DQ FIRE & EXPLOSION 

CONSULTANTS, INC. 

WEVA 2011-952-R Page 3090 

12-23-2014 HIDDEN SPLENDOR RESOURCES, 

INC. 

WEST 2009-208 Page 3099 

COMMISSION ORDERS 

12-11-2014 BRODY MINING, LLC WEVA 2014-82-R Page 3111 

12-23-2014 BLUESTONE QUARRIES, INC. SE 2011-577-M Page 3121 

12-23-2014 C. S. & S. COAL CORPORATION VA 2010-51 Page 3123 

12-23-2014 SIERRA ROCK & DIRT, INC. WEST 2014-42-M Page 3125 

12-23-2014 CONSOLIDATION COAL 

COMPANY 

WEVA 2014-786 Page 3127 

12-23-2014 CONSOLIDATION COAL 

COMPANY 

WEVA 2014-1044 Page 3129 

12-30-2014 AUSTIN POWDER COMPANY KENT 2013-1078 Page 3133 

12-30-2014 80TH STREET AGGREGATES LAKE 2013-82-M Page 3137 

12-30-2014 LAKEVIEW REDI-MIX COMPANY WEST 2010-314-M Page 3139 
ii 

12-30-2014 HARRY C. CROOKER & SONS, 

INC. 

YORK 2012-123-M Page 3141 

ADMINISTRATIVE LAW JUDGE DECISIONS 

02-26-2014 NELSON QUARRIES INC. CENT 2011-0878-M Page 3143

03-31-2014 FRED ESTRADA v. RUNYAN 

CONSTRUCTION, INC.

CENT 2013-311-DM Page 3156

09-15-2014 REX COAL COMPANY, INC. KENT 2011-1037 Page 3195

12-04-2014 EXCEL MINING, LLC KENT 2011-1618 Page 3232

12-05-2014 PORTABLE, INC. WEST 2013-526-M Page 3249

12-08-2014 SIGNATURE MINING SERVICES, 

LLC 

EAJ 2012-0002 Page 3261

12-22-2014 MAGRUDER LIMESTONE CO., 

INC. 

EAJ 2013-01 Page 3288

12-22-2014 M-CLASS MINING LLC LAKE 2011-295 Page 3301

ADMINISTRATIVE LAW JUDGE ORDERS 

10-29-2014 EMERALD COAL RESOURCES, LP PENN 2013-305 Page 3315

12-02-2014 HECLA LIMITED WEST 2013-781-M Page 3318

12-05-2014 POCAHONTAS COAL COMPANY, 

INC. 

WEVA 2014-395-R Page 3322

12-12-2014 STAR MINE OPERATIONS, LLC WEST 2015-100-RM Page 3326

09-15-2014 CACTUS CANYON QUARRIES, 

INC. 

EAJA 2014-1-M Page 3186 
iii 

12-17-2014 SEC. OF LABOR O/B/O JUSTIN 

GREENWELL v. ARMSTRONG 

COAL COMPANY 

KENT 2014-791-D Page 3330

12-17-2014 DANIEL B. LOWE v. VERIS GOLD 

USA, INC. 

WEST 2014-614-DM Page 3334

12-19-2014 KIRK FENOFF & SON 

EXCAVATING 

YORK 2014-28M Page 3339

12-23-2014 HECLA LIMITED WEST 2012-466-CM Page 3345

12-30-2014 BRODY MINING, LLC WEVA 2014-82-R Page 3355
iv 

Review was denied in the following cases during the month of December 2014:

Secretary of Labor, MSHA, v. Brody Mining, LLC, Docket No. WEVA 2014-82-R, et al. (Judge 

Moran, November 3, 2014) 

Secretary of Labor, MSHA, v. Pretty Good Sand Company, Inc., Docket No. SE 2014-344-DM 

(Judge Lewis, November 14, 2014) 

Review was not granted in any case during the month of December 2014.

Previously unpublished in FMSHRC Volume 36, Nos. 2, 3, 9, and 10

Secretary of Labor, MSHA, v. Nelson Quarries Inc., Docket No. CENT 2011-0878-M, (Judge 

Manning, February 26, 2014) 

Fred Estrada v. Runyan Construction, Inc., Docket No. CENT 2013-311-DM (Judge Moran, 

March 31, 2014) 

Secretary of Labor, MSHA, v. Rex Coal Company, Inc., Docket No. KENT 2011-1037 

(Judge Andrews, September 15, 2014) 

Cactus Canyon Quarries, Inc., v. Secretary of Labor, MSHA, Docket No. EAJA 2014-1-M 

(Judge Rae, September 15, 2014) 

Secretary of Labor, MSHA, v. Emerald Coal Resources, LP, Docket Nos. PENN 2013-305, 

PENN 2013-306 (Judge Miller, October 29, 2014) 
COMMISSION DECISIONS

1

 30 C.F.R. § 56.16009 provides that “[p]ersons shall stay clear of suspended loads.”

2

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

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

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

standards.”

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

December 10, 2014

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA)

v.

DAWES RIGGING & CRANE RENTAL

Docket No. LAKE 2011-206-M

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners

DECISION

BY THE COMMISSION:

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

1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”), and involves a single citation issued to

Dawes Rigging and Crane Rental (“Dawes”) by the Department of Labor’s Mine Safety and

Health Administration (“MSHA”). Citation No. 6502467 alleges that Dawes’ workers failed to

stay clear of a suspended load as required by the mandatory safety standard in 30 C.F.R. 

§ 56.16009.1

 The Administrative Law Judge affirmed the citation and the unwarrantable failure

designation, concluding that three workers were within the suspended load’s spin/arc/fall path in

violation of the standard. 34 FMSHRC 2012, 2024-25, 2028-29 (Aug. 2012) (ALJ). 

While we affirm the finding of a violation and the assessed penalty, we conclude that the

Judge erred in finding an unwarrantable failure.2

 We find that the Judge erred in his analysis of

the extent of the violation, the length of time the violation existed, and whether the operator was

put on notice that greater efforts were necessary to achieve compliance with the standard. In

addition, in light of these errors, the Judge failed to give proper weight to the fact that the one

worker who traveled directly under the suspended load did so to prevent an imminent threat to

another worker. 

36 FMSHRC Page 3075
I.

Factual and Procedural Background

Dawes was contracted to provide, assemble, and operate a Manitowoc Model 21,000

mobile crane at Tilden Mine’s pellet plant in Marquette County, Michigan. On May 27, 2010,

Dawes was attempting to connect a 93,000 pound, 150 foot long lattice boom to the body of the

Model 21,000 crane with the help of a smaller Manitowoc Model 14,000 crane. 34 FMSHRC at

2017, 2030. This process, referred to as the “boom-to-foot connection,” required the smaller

crane to lift the lattice boom precisely into place so that the boom and body of the larger crane

line up and pins could be inserted to connect the two components. Id. at 2017, 2021. The

assembly of the crane was overseen by Assembly/Disassembly Director William Rahmlow, a

veteran in crane operation and assembly with over two decades of experience at Dawes. Id. at

2019. 

Dawes employed seven men to complete the boom-to-foot connection. Jeffery Eick and

an oiler were tasked with holding tag lines to help stabilize the elevated boom. Eick was

positioned two to seven feet to the east of the boom on the end of the boom closest to the body of

the Model 21,000 crane, and the oiler was on the west side of the boom on the opposite end.

Rahmlow was immediately adjacent to the west side of the boom, across from Eick, giving

instructions to the crew to help guide the boom into place. Id. at 2020-21, 2024-25; Dawes Ex.

12. Two men were located on the body of the large crane where they would make the final pin

connections when the boom was in place. 34 FMSHRC at 2017; Tr. 162. Cleve Mozley was

operating the Model 21,000 crane, and Randy Gilbertson was operating the Model 14,000 crane. 

34 FMSHRC at 2017. 

While the lattice boom was being lifted into place, a gust of wind caused the boom to

swing to the east towards the cab of the large crane where Mozley was working. Id. at 2018. To

avoid a collision, Rahmlow instructed Eick to cross under the boom to pull the boom away from

the cab. Id. at 2025; Tr. 169, 170. Eick complied, and with Rahmlow’s assistance, was able to

pull the tag line and re-stabilize the boom. 34 FMSHRC at 2025.

MSHA Inspector Dominic Vilona observed Dawes’ assembly of the crane from inside a

van parked atop a hill 150 yards away. Id. at 2014, 2014 n.2. From the inspector’s vantage

point, it appeared that Rahmlow was working directly under the boom. Tr. 26-27. Vilona also

observed another miner (Eick) on the northeast side of the boom holding a tag line. Tr. 27. 

Vilona then had the van driver go to the site, where he observed that the person with the tag line

had moved to the northwest side of the boom. Tr. 31-32. Accordingly, Vilona issued a citation

alleging a violation of section 56.16009 for the two men’s failure to stay clear of a suspended

load. Tr. 45; 34 FMSHRC at 2015. 

In his decision below, the Judge found that Eick, Rahmlow, and Mozley had failed to

stay clear of the area in which the boom could have moved, spun, or fallen in violation of the

standard. 34 FMSHRC at 2024. Although Rahmlow and Mozley were never directly under the

suspended boom, the Judge noted that their proximity to the boom placed them both at risk of

serious injury were it to move or fall unexpectedly. Id. at 2024-25. 

36 FMSHRC Page 3076
Dawes filed a petition for review, which the Commission granted. It contends that the

cited standard does not apply to the assembly of a crane, and even if it does, the regulations

should not be interpreted to prevent the assembly crew from working alongside the suspended

boom. Dawes further argues that the Judge erred in finding an unwarrantable failure as its

conduct did not rise to the level of aggravated conduct or a reckless disregard or indifference to

the safety of its workers.

II.

Disposition

A. Whether Section 56.16009 Applies to Suspended Components During Equipment 

Assembly

The cited standard, 30 C.F.R. § 56.16009, appears in the regulations governing metal and

nonmetal mines, under Subpart O entitled “Materials Storage and Handling.” Dawes asserts that

the crane is “machinery” rather than “material” and hence is not covered by the standard. 

Regulatory language cannot be construed in a vacuum but must be read in its context and

with a view to its place in the overall regulatory scheme. See Davis v. Michigan Dept. of

Treasury, 489 U.S. 803, 809 (1989). When a regulation is ambiguous, traditional tenets of

regulatory interpretation permit examination of the heading of the section in which the regulation

falls to assist in resolving doubt about its meaning. Northshore Mining Co. v. Sec’y of Labor,

709 F.3d 706, 710 (8th Cir. 2013) (citing Bhd. of R.R. Trainmen v. Baltimore & Ohio R.R. Co.,

331 U.S. 519, 529 (1947); Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998)). 

Although ambiguity may exist in the scope of the regulation’s application, we find the

term “materials” sufficiently broad to encompass the suspended boom in question. “Materials”

is defined, inter alia, as the “substance or substances out of which a thing is or can be made” or

the “[t]ools or apparatus for the performance of a given task.” AMERICAN HERITAGE

DICTIONARY OF THE ENGLISH LANGUAGE 1079 (4th ed. 2009); see also Robert Hardin, 19

FMSHRC 1233, 1237 (June 1997) (defining the term “smoking materials”). We are not

persuaded by Dawes’ contention that the suspended boom is beyond the purview of the

regulation. The placement of the regulation does not exclude suspended equipment from

coverage. See Jim Walter Res., Inc., 7 FMSHRC 493, 495-96 (Apr. 1985) (finding a regulation

governing the transport of “materials” to include the transport of coal, despite the Judge’s

finding that a more appropriate standard existed). Additionally, Subpart O contains other

regulations that address equipment such as overhead cranes (§§ 56.16014, 56.16015), forklifts (§

56.16016), and tag lines, hitches and slings (§ 56.16007).

We decline to read a limitation into the standard where none exists. We find the standard

applicable to the case at hand. 

36 FMSHRC Page 3077
B. Whether Dawes’ Conduct Violated Section 56.16009

The question of whether an operator has violated section 56.16009 is dependent on

whether a person was not “clear of” the suspended load. The inspector issued Citation No.

6502467 based on the belief that both Eick and Rahmlow had failed to stay clear of the

suspended load because they had gone directly under the boom. The Judge discounted the

inspector’s testimony concerning Rahmlow’s location directly under the boom based on the

contrary testimony by Dawes’ witnesses and the inspector’s distance from the assembly site. 34

FMSHRC at 2024-25. However, the Judge interpreted “stay clear of” to prohibit persons from

working in the suspended load’s possible arc or radius and the area that would be affected should

the load fall. Id. at 2024. Accordingly, the Judge found that not only were Eick and Rahmlow in

violation of the standard, but that Mozley, who was operating the Model 21,000 crane, was also

not clear of the boom. 

All parties agree that it is not safe to stand directly under a suspended load. See Tr. 86,

121, 146, 160, 173, 179, 189; Sec’y Ex. 15 at 2-20, Fig. 2-4. Further, we have held that “stay

clear of” requires more than simply staying out from directly underneath a suspended load. 

Anaconda Co., 3 FMSHRC 299, 301 (Feb. 1981). As explained below, the record in this case

does not permit further elaboration on the principle in Anaconda. 

It is undisputed that, at Rahmlow’s direction, Eick crossed directly under the suspended

load in order to pull the wayward boom away from the cab where Mozley was working. In

doing so, Eick placed himself in danger of potentially fatal injuries were the crane’s rigging to

fail and the 93,000 pound boom to fall. Although in some emergency situations there may be

instances where an operator is justified in violating a standard to prevent an impeding greater

hazard, Sewell Coal Co., 5 FMSHRC 2026, 2029 n.2 (Dec. 1983), Eick’s conduct cannot be

excused by citing the threat the boom posed to Mozley. This was an emergency of Dawes’ own

making by virtue of the number and placement of tag lines attached to the boom. Had Dawes

employed additional tag lines or made effective use of the two existing tag lines, the crane

assembly crew would have been better situated to counteract the effect of the sudden gust of

wind without resorting to Eick moving under the boom. Eick’s travel beneath the boom clearly

violated the regulation. 

The case regarding the placement of Rahmlow and Mozley is not as straightforward. 

Much of the testimony of the Secretary’s sole witness, Inspector Vilona, was not credited by the

Judge because of the inspector’s distance from the assembly site and his relative inexperience

with the crane assembly process. 34 FMSHRC at 2014 n.2, 2025 n.14. Whether a person is

clear of a suspended load must be determined by considering the particular facts surrounding the

violation. The case cannot rest on a vague observation that suspended loads move in

unpredictable ways. Tr. 46.

No evidence was presented that either Rahmlow or Mozley was ever beneath the boom,

and it is not clear from the evidence whether they were located in positions in which they were in

danger from the movement or falling of the boom. The Secretary did not produce any evidence

36 FMSHRC Page 3078
3

 Because Vilona issued the citation based on his belief that persons worked directly

underneath the suspended boom, there is scant evidence in the record explaining what area posed

a risk to persons, beyond that directly under the boom. The inspector evidently did not believe

that Mozley was exposed to the hazards posed by the boom. Tr. 44-45. Similarly, the inspector

did not appear to believe that Rahmlow’s position next to, but not under, the boom placed him at

risk of immediate injury. Tr. 84. When Vilona reached the crane assembly site, Rahmlow was

standing very close to the boom guiding the boom-to-foot connection. Tr. 38; Sec’y Ex. 4 at 1. 

as to the area which would be affected if the boom fell.3

 In any event, Eick’s unquestioned

movement under the boom clearly violated the standard and we affirm the Judge’s finding of a

violation. 

C. Whether the Judge Erred in Finding an Unwarrantable Failure

Unwarrantable failure is aggravated conduct constituting more than ordinary negligence. 

Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is

characterized by “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious

lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,

194 (Feb. 1991); see also Buck Creek Coal, Inc., 52 F.3d 133, 136 (7th Cir. 1995) (approving

Commission’s unwarrantable failure test). 

Whether the conduct is “aggravated” in the context of unwarrantable failure is

determined by looking at all the facts and circumstances of each case, including (1) the extent of

the violative condition, (2) the length of time that it has existed, (3) whether the violation posed a

high risk of danger, (4) whether the violation was obvious, (5) the operator’s knowledge of the

existence of the violation, (6) the operator’s efforts in abating the violative condition, and (7)

whether the operator has been placed on notice that greater efforts are necessary for compliance. 

See Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 31 FMSHRC

1346, 1350-57 (Dec. 2009); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998),

rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999). These factors need to be viewed in the

context of the factual circumstances of a particular case. Consolidation Coal Co., 23 FMSHRC

588, 593 (June 2001). All of the relevant facts and circumstances of each case must be examined

to determine if an operator’s conduct is aggravated or whether mitigating circumstances exist.

Id.

Having reviewed the Judge’s application of those factors, we vacate the Judge’s

unwarrantable failure determination. As set forth below, the factors relevant to an unwarrantable

failure determination do not support a finding of an unwarrantable failure.

The extensiveness of the violative conduct has traditionally been determined by

examining the extent of the affected area as it existed at the time the citation was issued. See E.

Associated Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010) (the purpose of the extensiveness

criterion is to account for the magnitude or scope of the violation); Peabody Coal Co., 14

FMSHRC 1258, 1261 (Aug. 1992) (finding five accumulations of loose coal identified during a

single inspection to be extensive). In some situations, though, extensiveness depends on the

36 FMSHRC Page 3079
4

Given that substantial evidence only supports the finding that Eick violated the

standard, the Judge erred insomuch as he considered Rahmlow’s and Mozley’s conduct in his

unwarrantable failure analysis. See Slip op., supra, at 4-5.

5

 A significant difference exists between the forms of notice that inform an operator of

the Secretary’s interpretation of a standard and the forms of notice that inform an operator that

greater efforts at compliance are needed for purposes of an unwarrantable failure analysis. An

operator is on notice of the Secretary’s interpretation of a regulation when it is, or reasonably

should be, aware of the standard’s requirements or is aware of other regulatory enforcement

announcements, such as the Rules to Live By initiative. However, such notice of a regulatory

number of persons affected by the violation. See Watkins Eng’rs & Constructors, 24 FMSHRC

669, 681 (July 2002). As discussed above, the evidence establishes that Eick engaged in

violative conduct and that his presence under the boom only endangered himself. Given the

relatively small scope of the hazard, the violation was not extensive. 

An operator’s past practices are not relevant to the consideration of the extensiveness

factor in an unwarrantable determination analysis. To the extent the Judge based his

unwarrantable failure finding on Dawes’ past practices, he erred. However, even considering

past practices, the record does not support a finding that the violative conduct was pervasive. 

Dawes is a contractor that operates at work sites beyond MSHA jurisdiction, which are governed

by regulatory schemes with different rules regarding how close persons can work in relation to

suspended loads. The record only indicates that Dawes worked at one other mine prior to its

work at Tilden Mine, and there is no testimony as to the type of work performed at mines in the

past. See Sec’y Ex. 14. In light of the fact that the record establishes a relatively discrete

violation in this case, and without past examples of Dawes employees failing to stay clear of

suspended loads at MSHA regulated work sites, there is no basis for finding that the violative

conduct was extensive.4

 

Similarly, the record does not support the Judge’s presumption that Eick was in

dangerous proximity to the boom for a significant amount of time. Eick was only under the

suspended boom for a matter of seconds. Tr. 54. Although his actions placed him in danger of

serious injury were the rigging to fail, Eick’s exposure to this danger was very brief. 

Accordingly, the extensiveness and duration of the violative condition weigh against a finding of

an unwarrantable failure.

Repeated similar violations may be relevant to an unwarrantable failure determination to

the extent that they serve to put an operator on notice that greater efforts are necessary for

compliance with a standard. Amax Coal Co., 19 FMSHRC 846, 851 (May 1997); see also

Consolidation Coal Co., 23 FMSHRC 588, 595 (June 2001) (“a high number of past violations

of section 75.400 serve to put an operator on notice that it has a recurring safety problem in need

of correction”) (citations omitted). “The purpose of evaluating the number of past violations is

to determine the degree to which those violations have ‘engendered in the operator a heightened

awareness of a serious . . . problem.’” San Juan Coal Co., 29 FMSHRC 125, 131 (Mar. 2007)

(quoting Mid-Continent Res., Inc., 16 FMSHRC 1226, 1232 (June 1994)).5

(continued...)

36 FMSHRC Page 3080
interpretation does not place an operator on notice that its mine is failing to comply with

MSHA’s regulations for the purposes of the unwarrantable failure analysis. In that context, it is

well settled that we examine the operator’s history of violations, warnings from inspectors, and

other forms of specific warnings to determine if the operator has been placed on notice of a

persistent unsafe condition or practice at its mine. See Peabody Coal Co., 14 FMSHRC 1258,

1262 (Aug. 1992) (past preshift examinations placed operator on notice of a problem);

Consolidation Coal Co., 23 FMSHRC 588, 595 (June 2001) (past discussions with MSHA

placed operator on notice of a problem); Lion Mining Co., 18 FMSHRC 695, 700 (May 1996)

(history of similar violations and recent roof falls placed operator on notice of a problem). 

The Judge suggests that the operator was indirectly on notice that greater efforts were

necessary where the regulation and its intent were clear. 34 FMSHRC at 2029. However, the

evidence demonstrates that Dawes had a good safety record. In the 15 months prior to the

issuance of the citation, Dawes had only been cited for two violations by MSHA, neither of

which alleged a violation of section 56.16009 or a danger posed by a suspended load. Sec’y Ex.

14. There is nothing in the record to suggest that MSHA had previously spoken to Dawes about

its crane assembly process or that Dawes was alerted in any other way that employees failing to

stay clear of suspended loads represented an ongoing problem requiring corrective measures. 

Accordingly, we determine that substantial evidence does not support the Judge’s finding of

notice and conclude that this factor also weighs against a finding of unwarrantable failure. 

Finally, as we have discussed, the Judge’s findings regarding extensiveness, duration,

and notice were erroneous. In light of this, we conclude that the mitigating circumstances

present here outweigh the remaining factors the Judge relied on to find unwarrantable failure. 

Most importantly, we agree that Eick’s explanation for why he did not stay clear of the

suspended load should be considered as a mitigating factor. The evidence indicates that Eick

only crossed under the boom in order to address an imminent threat to Mozley. While such a

consideration does not negate the violation, it significantly militates against a finding that Dawes

was indifferent to the safety of its employees.

D. Penalty Determination

Although we vacate the unwarrantable failure designation, we find the Judge’s

application of the civil penalty criteria in assessing a penalty of $2,500 is not an abuse of

discretion. The Secretary proposed a penalty of $3,000, which the Judge reduced to $2,500. The

penalty assessed by the Judge falls within the range of his discretion given the high level of

danger the 93,000 pound boom posed; the fact that Rahmlow, a supervisor, instructed Eick to

cross under the suspended load; and that Dawes’ decision regarding the number and placement

of tag lines to control the suspended load precipitated the need to go beneath the suspended load.

5

 (...continued)

36 FMSHRC Page 3081
III.

Conclusion

For the reasons set forth above, we (1) affirm in result the Judge’s finding that Dawes

violated section 56.16009, (2) vacate the unwarrantable failure designation, and (3) affirm the

$2,500 penalty assessed by the Judge. 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman

/s/ Robert F. Cohen

Robert F. Cohen, Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

36 FMSHRC Page 3082
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

December 19, 2014 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. WEVA 2011-602 

v. 

DQ FIRE & EXPLOSION 

 CONSULTANTS, INC. 

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners 

DECISION

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act, 30 U.S.C. ' 801 

et seq. (2012) (AMine Act@ or AAct@), an Administrative Law Judge upheld a withdrawal order 

issued to DQ Fire & Explosion Consultants, Inc. for an alleged violation of 30 C.F.R. ' 48.5(a).1

 Unpublished Order Granting the Secretary=s Motion for Partial Summary Decision dated 

 Aug. 13, 2012 (ASum. J. Order@). DQ filed a petition for discretionary review challenging the 

Judge=s final Decision and Order issued on August 30, 2014. However, the Commission granted 

review only on the question of whether the Secretary provided adequate notice of the Secretary=s 

interpretation of the training regulations at issue. 

For the reasons stated below, we reverse the Judge=s decision and conclude that DQ was 

not provided fair notice of the requirements of the training regulations at issue, 30 C.F.R. ''

48.2(a)(1), (a)(2), and 48.5.2

1

 30 C.F.R. ' 48.5(a) provides: 

Each new miner shall receive no less than 40 hours of training as 

prescribed in this section before such miner is assigned to work duties. Such 

training shall be conducted in conditions which as closely as practicable duplicate 

actual underground conditions, and approximately 8 hours of training shall be 

given at the minesite. 

2

 We have determined that oral argument is not necessary, and, therefore, DQ=s motion 

for oral argument is denied. 

36 FMSHRC Page 3083
I.

 Facts and Proceedings Below

The central issue presented in this case is whether a scientific consultant, hired by the 

operator=s attorneys to investigate the causes of an explosion, needed comprehensive new miner 

training or only hazard training. Comprehensive miner training requires 40 hours of training and 

covers topics in detail such as emergency evacuation and barricading, the use of self-rescue and 

respiratory devices, hazard recognition, first aid, mine gases and eight hours of underground 

training specific to the mine site. 30 C.F.R. ' 48.5. Hazard training requires significantly less 

instruction on topics such as hazard recognition, self-rescue equipment, and emergency 

evacuation procedures. 30 C.F.R. ' 48.11. Miners subject to hazard training must be 

accompanied at all times underground by an experienced miner. Id. 

On April 5, 2010, a massive coal dust explosion occurred at the Upper Big Branch 

(AUBB@) Mine resulting in the deaths of 29 miners. Performance Coal Company was the operator 

of UBB at the time of the explosion. The Department of Labor=s Mine Safety and Health 

Administration (AMSHA@) immediately began an extensive investigation into the causes of the 

explosion. 

Performance Coal=s attorneys hired Dr. Christopher Schemel (ASchemel@) of DQ as a 

consultant to be part of the investigation team for UBB, and to provide information to 

Performance Coal about the explosion and how it occurred. During MSHA=s part of the 

investigation, Schemel accompanied personnel from MSHA and West Virginia=s Office of 

Miner=s Health Safety and Training. From June 29 to October 6, 2010, he went underground with 

MSHA on 25 days during MSHA=s investigation. Sum. J. Order at 6. His role was to accompany 

the MSHA team to observe mine conditions, gather data for his own analysis, and take notes. 

Schemel Dep. at 80-81, 84-85. Prior to going underground, Schemel received hazard training 

required by 30 C.F.R. ' 48.11. Sum. J. Order at 9. Throughout the period from June to October, 

MSHA was aware that Schemel had only received hazard training. Id. at 3. 

On October 7, 2010, MSHA issued an order withdrawing Schemel from the mine until he 

received comprehensive 40-hour training.3

 This withdrawal order corresponded with the onset of 

Performance Coal=s part of the investigation. Schemel received the 40-hour training and then 

resumed his investigatory and analytical consultant duties. 

 3

 Order No. 8249950 provides: 

Chris Schemel, a contract employee for the operator, has 

not received the required 40-hour new miner training prior to 

performing duties underground at the mine site. Mr. Schemel has 

no previous mining experience. Mr. Schemel is hereby ordered to 

withdraw from the mine until he has received the required training. 

The Federal Mine Safety and Health Act of 1977 declares that an 

untrained miner is a hazard to himself and to others. 

36 FMSHRC Page 3084
The Secretary assessed a penalty of $112 for the training violation. DQ contested the 

order and penalty. Prior to a hearing, the Secretary filed a motion for partial summary judgment, 

contending that the record and law were uncontroverted that Schemel was a miner under 30 

C.F.R. ' 48.2(a)(1) who needed comprehensive training under 30 C.F.R. ' 48.5. DQ, on the 

other hand, argued that Schemel was not a Aminer@ as defined by section 48.2(a)(1), but was 

instead a Ascientific worker@ as described in section 48.2(a)(2), and therefore required only 

hazard training. 

In addressing DQ=s argument that Schemel required only hazard training because his 

work fell under the scientific worker exception, the Judge agreed that some of Schemel=s work at 

the UBB mine consisted of collecting data and analyzing coal dust, and could fall within the 

realm of scientific work. However, the Judge reasoned that Schemel was not conducting 

research for scientific purposes alone and Ahis primary purpose was assisting his employer in 

litigation.@ Sum. J. Order at 12. Accordingly, the Judge found that DQ qualified as Aan 

independent contractor@ that was providing Aservices@ to the mine, as that term is used in the 

Mine Act and in the training regulations. Id. at 13-14. The Judge further found that the training 

standards demonstrate Aan obvious intent on the part of the Secretary to provide 40-hour training 

to . . . those whose time underground is sufficient to create an exposure to hazards.@ Id. at 14. 

She held that Schemel Awas frequently exposed to hazards underground,@ and as such was 

required to have comprehensive training pursuant to section 48.2(a)(1). Id. 

The Judge also rejected DQ=s argument that the Secretary failed to provide notice of his 

interpretation of the training regulations, concluding that Aa reasonably prudent person familiar 

with the mining industry and the protective purpose of the standard would understand that a 

person who is underground for frequent and extended periods of time must be adequately 

trained.@ Id. at 15. 

II. 

Disposition

A. Relevant Training Law

 Mine Act section 115(a)(1) requires that A[e]ach operator. . . shall have a health and 

safety training program which . . . .shall provide as a minimum that new miners having no 

underground mining experience shall receive no less than 40 hours of training.@ 30 U.S.C. '

825(a)(1). Section 104(g) of the Act provides that if the Secretary finds Aa miner who has not 

received the requisite safety training as determined under section 115 of this Act, the Secretary. . 

. shall issue an order . . . which declares such miner to be a hazard to himself and to others, and 

requiring that such miner be immediately withdrawn from the coal . . . mine, and be prohibited 

from entering such mine until an authorized representative of the Secretary determines that such 

miner has received the training required by section 115 of this Act.@

4

 30 U.S.C.' 814(g). 

4

 The legislative history of the Mine Act expressed a deep concern over the problem of 

poorly trained miners and attributed many mining disasters to poor training. S. Rep. No. 95-181, 

at 49-51 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative 

History of the Federal Mine Safety and Health Act of 1977, at 637-39. 

36 FMSHRC Page 3085
The Secretary=s Part 48 regulations implement Mine Act section 115 and set forth 

different types of training requirements. As noted above, pertinent to this case are 

comprehensive new miner training, which is outlined in section 48.5, and hazard training, 

described in section 48.11. The definitions of Aminer@ set forth in sections 48.2(a)(1) and (a)(2) 

determine which training is applicable, as set forth below. Section 48.2(a)(1) provides: 

AMiner@ means, for purposes of [comprehensive training], any 

person working in an underground mine and who is engaged in the 

extraction and production process, or engaged in shaft or slope 

construction, or who is regularly exposed to mine hazards, or who 

is . . . a maintenance or service worker contracted by the operator 

to work at the mine for frequent or extended periods. This 

definition shall include the operator if the operator works 

underground on a continuing, even if irregular basis. . . . This 

definition does not include: . . . [a]ny person covered under 

paragraph (a)(2) of this section. 

Section 48.2(a)(2) provides: 

AMiner@ means, for purposes of [hazard training], any person 

working in an underground mine, including any delivery, office, or 

scientific worker or occasional, short-term maintenance or service 

worker contracted by the operator, and any student engaged in 

academic projects involving his or her extended presence at the 

mine. This definition excludes persons covered under paragraph 

(a)(1) [above].

Thus, the definitions of Aminer,@ as they relate to the two different training requirements, are 

mutually exclusive. 

The preamble to Part 48 states that Aonly those persons most directly and regularly 

exposed to mining hazards need to undergo comprehensive training.@ 43 Fed. Reg. 47,454, 

47,455 (Oct. 13, 1978). It continues: Aother workers at the mine, such as scientific, office, or 

delivery personnel, either employed or contracted by the operator, or short term maintenance or 

service personnel contracted by the operator [who] are exposed to . . . hazards on a less regular 

basis . . . . [t]hese workers, therefore, have periodic instruction concerning the hazards they may 

encounter.@ 43 Fed. Reg. at 47,455. 

In 2003, MSHA issued a Program Policy Manual on Training and Retraining of Miners 

(Vol. III) (APPM@), which provided that independent contractors working at a mine are miners 

for Part 48 training purposes and that the type of training a miner receives is not based on the 

specific job title but a Adetermination must be made as to the kind and extent of mining hazard 

exposure.@ PPM at 34. The PPM states that A[i]ndividuals engaged in the extraction or production 

process, or regularly exposed to mine hazards, or contracted by the operator and regularly 

36 FMSHRC Page 3086
exposed to mine hazards, must receive comprehensive training.@ Id. It defines A>regularly 

exposed= [as] either frequent exposure, that is exposure to hazards at the mine on a frequent 

rather than consecutive day basis (a pattern of recurring exposure), or extended exposure of more 

than 5 consecutive workdays, or both.@ Id. The PPM goes on to state that independent 

contractors Amust receive comprehensive training if they . . . are regularly exposed to mine 

hazards.@ PPM at 35, 36. 

B. Whether DQ Had Notice that Schemel Needed Comprehensive Training

Under Commission precedent, if the language of a regulation provides clear and 

unambiguous notice of its coverage and requirements, no further notice is necessary. Bluestone 

Coal. Co., 19 FMSHRC 1025, 1029 (June 1997) (when regulatory provision is clear and 

unambiguous, then the regulation provides adequate notice); Nolichuckey Sand Co., 22 

FMSHRC 1057, 1061 (Sept. 2000) (If the regulation is unambiguous, the regulation=s clear 

meaning is controlling and it Afollows that the standard provided the operator with adequate 

notice of its requirements.@) 

Sections 48.2(a)(1) and (a)(2) do not explain or define who qualifies as a Ascientific 

worker.@ Similarly, neither the preamble nor any published guidances, including the 2003 PPM, 

explains the term Ascientific worker.@ Accordingly, we determine that sections 48.2(a)(1) and 

(a)(2) are ambiguous with respect to who qualifies as a scientific worker under these 

circumstances. 

When a regulation is ambiguous, the courts and this Commission defer to the Secretary=s 

reasonable interpretation of the regulation. E.g., Energy West Mining Co. v. FMSHRC, 40 F.3d 

457, 463 (D.C. Cir. 1994). However, this is not a case of interpretation but rather involves 

whether the operator received sufficient notice to satisfy due process considerations.5

 5

 We do not address the issue of whether the Secretary=s interpretation of the training 

regulations at issue was reasonable in that the Commission did not accept review of that question 

in granting DQ=s petition. 30 U.S.C. ' 823(d)(2)(A)(iii). 

The due process clause Aprevents . . . deference from validating the application of a 

regulation that fails to give fair warning of the conduct it prohibits or requires.@ General Electric 

Co. v. EPA, 53 F.3d 1324, 1328 (D.C. Cir. 1995)(citation omitted) (AGE@ ). DQ argues that it had 

insufficient notice of the Secretary=s interpretation because Schemel should be classified as a 

Ascientific worker@ under section 48.2(a)(2) (requiring only hazard training) and because MSHA 

permitted him to go underground many times before asserting the need for comprehensive 

training. 

 When a regulation does not provide unambiguous notice of its coverage, the appropriate 

test for notice of an ambiguous regulation is Awhether a reasonably prudent person familiar with 

the mining industry and the protective purposes of the standard would have recognized the 

specific prohibition or requirement of the standard.@ Ideal Cement Co., 12 FMSHRC 2409, 2416 

(Nov. 1990). AIn deciding whether a party had adequate notice of regulatory requirements, a 

36 FMSHRC Page 3087
wide variety of factors are relevant, including the text of a regulation, its placement in the overall 

regulatory scheme, its regulatory history, the consistency of the agency=s enforcement, and 

whether MSHA has published notices informing the regulated community with ascertainable 

certainty of its interpretation of the standard in question.@ Lodestar Energy, Inc., 24 FMSHRC 

689, 695 (July 2002). 

A reasonably prudent person would not have recognized the training mandate now 

advanced by the Secretary in part because section 48.2(a)(2) exempts scientific workers from 

comprehensive 40-hour training requirements. As the Judge found, some of Schemel=s work at 

the UBB mine consisted of collecting data and analyzing coal dust, and could fall within the 

realm of scientific work. Sum. J. Order at 12. As discussed above, the text of the regulations 

does not define who qualifies as a scientific worker. Additionally, neither the preamble nor the 

PPM specifies who falls under the scientific worker category. In the absence of a definition of 

Ascientific worker@ in the regulations or published guidances, it was reasonable for DQ to assume 

that Schemel qualified as a scientific worker. 

Moreover, MSHA=s actions created enormous confusion regarding the type of training 

Schemel needed. Schemel accompanied MSHA underground at UBB on 25 occasions prior to 

Performance Coal=s part of the investigation.6

 On none of these occasions did MSHA indicate 

that he required comprehensive 40-hour training. 

Indeed, MSHA itself did not assert that Schemel needed comprehensive training when he 

was accompanying MSHA officials. It was not until approximately September 9, 2010, after 

Schemel had been underground 21 times, when Jerry Vance, a training specialist with MSHA, 

checked with MSHA Headquarters to inquire whether Schemel needed more than hazard 

training. Vance Dep. at 28. Although Headquarters responded that Schemel required 40-hour 

training, MSHA delayed in issuing the withdrawal order until October 7, and MSHA escorted 

Schemel underground without comprehensive training on four more occasions.7 Thus, the 

actions of MSHA itself contributed to DQ=s failure to understand the training requirements. If 

MSHA inspectors and supervisors did not know what the training regulations required, how 

could DQ? See GE, supra at 1333 (when agency itself is Aunable to discern clearly . . . [what] 

was required,@ the regulation did not provide adequate notice). 

In GE, supra at 1334, the court held that when regulations and other policy statements 

are unclear and Awhere the agency itself struggles to provide a definitive reading of the 

regulatory requirements,@ the regulated party cannot be held to be Aon notice@ of the agency=s 

interpretation. See also Lloyd C. Lockrem, Inc. v. United States, 609 F.2d 940, 944 (9th Cir. 

 6

 Schemel accompanied MSHA underground at UBB on the following dates between 

June and October 6, 2010: June 29; July 7, 8, 13, 14, 15, 19, 20, 21, 23, 27, 28, 29; August 4, 12, 

13, 18, 20, 23, 25, 30; September 9, 23; October 5 and 6. Sum. J. Order at 6. 

7

 MSHA Inspector Charles Maggard, a training supervisor who was part of the UBB 

investigation team, stated that the delay was caused by a lack of coordination with other MSHA 

inspectors and the large, busy nature of the UBB investigation. Maggard Dep. at 5-10, 26-27, 36-

37. 

36 FMSHRC Page 3088
1979) (vacating order and providing that Aan employer should not be held to standards, the 

application of which cannot be agreed upon by those charged with their enforcement.@). Here, 

the ambiguity in the wording of the regulations, coupled with MSHA=s confusing actions, 

resulted in a lack of notice to DQ that Schemel was required to have comprehensive training. 

We emphasize that this is a narrow ruling based on a unique set of facts. We conclude 

that on these facts, dealing with a scientific expert and MSHA=s specific enforcement actions, the 

operator did not have notice of the Secretary=s interpretation that miners who are regularly 

exposed to mining hazards must receive comprehensive training regardless of job title. 

Accordingly, on due process grounds, we vacate the withdrawal order and the penalty at issue 

here. 

III. 

Conclusion

For the foregoing reasons, we vacate Order No. 8249950 and the accompanying penalty. 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen

William I. Althen, Commissioner 

36 FMSHRC Page 3089
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

December 19, 2014

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket Nos. WEVA 2011-952-R 

v. WEVA 2011-2480 

DQ FIRE & EXPLOSION 

 CONSULTANTS, INC. 

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners 

DECISION

BY THE COMMISSION: 

This proceeding arises under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). It involves a citation issued to DQ Fire & 

Explosion Consultants, Inc. for a violation of a section 103(k) 1 order issued to Performance Coal 

Company at its Upper Big Branch Mine – South (“UBB”) after a massive explosion on April 5, 

2010. The citation was issued in January 2011, alleging that DQ violated the terms of a section 

103(k) order by entering a restricted area of the mine, Zone 5. The Secretary alleged that high 

negligence was involved and initially proposed a penalty of $112. After the hearing, the 

Secretary requested that the penalty be increased to $1,000. The Judge affirmed the citation, 

found high negligence, and assessed a penalty of $1,000. 34 FMSHRC 2318, 2333-36, 2338-40 

(Aug. 2012) (ALJ). DQ filed a petition for discretionary review challenging the Judge’s decision 

1

 Section 103(k) provides: 

In the event of any accident occurring in a coal or other 

mine, an authorized representative of the Secretary, when present, 

may issue such orders as he deems appropriate to insure the safety 

of any person in the coal or other mine, and the operator of such 

mine shall obtain the approval of such representative, in 

consultation with appropriate State representatives, when feasible, 

of any plan to recover any person in such mine or to recover the 

coal or other mine or return affected areas of such mine to normal. 

30 U.S.C. § 813(k). 

36 FMSHRC Page 3090
on several grounds. The Commission granted DQ’s petition only with regard to the Judge’s high 

negligence finding.2 For the reasons that follow, we affirm the Judge’s decision.3

I. 

Factual and Procedural Background

On April 5, 2010, an underground coal dust explosion killed 29 miners and injured two 

others at Performance’s UBB Mine. 34 FMSHRC at 2320; Jt. Stip. 15. In January 2011, DQ was 

providing consulting services to Performance at the UBB Mine. 34 FMSHRC at 2319; Jt. Stip. 2. 

A representative of MSHA issued a section 103(k) order to the mine following the 

explosion on April 5, 2010. Gov. Ex. 3. On December 23, 2010, MSHA modified the previously 

issued section 103(k) order controlling access to the accident scene at the UBB Mine and 

limiting entry into Zone 5, which included the longwall face, a portion of the headgate for the 

longwall, and a portion of the tailgate for the longwall. Tr. 11-12, 38-39, 66, 100; G. Ex. 5. This 

is the location where authorities believed the explosion originated. Tr. 8, 85. The modified 

section 103(k) order stated: 

103(k) Modification allowing Performance Coal to proceed with 

its’ [sic] investigation following the completion of investigation 

activities on the longwall 

This Order is hereby modified to allow Performance Coal to 

proceed with its’ [sic] investigation activities with the following 

stipulations: 

No person shall be permitted in Zone 5 to conduct any 

activities other than for the purpose of conducting 

examinations required by the regulations. 

. . . 

2

 In its petition, DQ raised the following issues: (1) whether it was an independent 

contractor under the Mine Act; (2) whether a violation of the section 103(k) order occurred; (3) 

whether MSHA abused its discretion in modifying the order for January 10, 2011, but not 

January 11 and 12; (4) whether MSHA abused its discretion in retaining the December 23, 2010 

modification of the order; (5) whether the Judge erred in finding high negligence; and (6) 

whether the Judge erred in increasing the penalty. 

3

 DQ also filed a motion requesting oral argument. We have determined that oral 

argument is not necessary, and DQ’s motion is denied. 

36 FMSHRC Page 3091
Performance Coal Company shall continue to follow the 

Performance Coal Company Investigation Plan Addendum

dated December 2, 2010 . . . . 

Any modifications to the existing investigation plan shall 

be submitted to MSHA’s Accident Investigation Team. 

These modifications will be reviewed and approved by the 

AI Team prior to Performance Coal proceeding with any 

submitted modification to the existing plan. 

Performance Coal shall submit daily updates concerning 

the progress of its’ [sic] investigation to MSHA’s Accident 

Investigation Team . . . . 

34 FMSHRC at 2324; G. Ex. 3. This was the order in effect in January 2011 on the dates of the 

alleged violation. The Judge credited MSHA Inspector James Keith McElroy’s testimony that in 

order for the section 103(k) order to be modified, the operator must request modification by at 

least the night before, and that MSHA had to perform the modification, deliver the modification 

to the mine, and assign an authorized representative to escort the operator for the day of the 

modification. 34 FMSHRC at 2335; Tr. 82-83. 

The negligence determination in this case hinges on the process required for the operator 

to seek modifications of the section 103(k) order – and specifically whether the informal 

modification process the operator claims it followed sufficed. 

On January 10, 2011, Dr. Christopher Schemel led DQ’s investigative team. Tr. 21-23. 

He was accompanied by Stephen Dubina, an electrical engineer with MSHA’s Pittsburgh 

Technical Support Center, who was assigned as an observer to the Performance Coal/DQ 

investigative team. While underground, Schemel asked Dubina for permission to view the 

longwall face, which was located in Zone 5, the area where MSHA’s 103(k) order prohibited 

access. Tr. 21-22; 34 FMSHRC at 2322-23. Dubina granted him permission. Tr. 46-48; 34 

FMSHRC at 2322-23.4

 

On January 11, 2011, Dr. Pedro Reszka Cabello (“Reszka”) led the DQ team from Zone 3 

down Entry No. 2 to crosscut 24, which is in Zone 5. While in crosscut 24, Reszka’s team 

examined a supply car and a monorail, took several measurements, and then proceeded to Entry 

No. 1. The team took nine photographs of equipment within Zone 5. While underground, Dubina 

had suspected that the DQ team had entered Zone 5, but did not have a map to verify that and did 

not say anything to Reszka. 34 FMSHRC at 2323; Tr. 30-31. Reszka testified that prior to 

entering the mine on January 11, he informed Chris Prater of Performance of DQ’s plan to enter 

Headgate 21, which is partly in Zone 5, during their investigation on January 11, and he believed 

4

 Dubina testified that he did not have a map with him that day, and did not know that 

they had entered Zone 5 until he exited the mine. Tr. 21-22, 25. 

36 FMSHRC Page 3092
that Prater had notified MSHA by phone on the night of January 10. 34 FMSHRC at 2326; Tr. 

99. 

On the night of January 11, Prater sent MSHA an email explaining the investigative 

teams’ plans for January 12, which included two teams on “HG 21/22 crossover” and one team 

“working in the glory hole panel.” 34 FMSHRC at 2535; DQ Ex. D.

On January 12, Reszka’s DQ team traveled through the North Glory Mains at Entry No. 2 

into the Headgate area, and then into Zone 5 through Crosscut 24. 34 FMSHRC at 2335; Tr. 33, 

35, 105. They traveled through Crosscuts 25 and 26, went to the longwall at Crosscut 26, and 

under Shield number 1 to check on some measurements on covers that possibly were blown off 

some of the equipment. Then, the team went up to Tailgate 22, to its face area, and then back to 

Entry No. 3. While in these areas, the team conducted measurements, examined roof bolts, 

timbers, and stoppings, and took 26 photographs in Zone 5. Dubina testified that he had alerted 

Reszka that the team had entered Zone 5, but that Reszka did not respond. 34 FMSHRC at 2323; 

Tr. 37. Reszka denied that Dubina made any such statement to him. 34 FMSHRC at 2327; Tr. 

103. Reszka and Danny Lee Laverty, a representative of Performance whose role was to 

accompany DQ during its investigation, both testified that Laverty had asked Dubina’s 

permission to enter Tailgate 22 in Zone 5 on Janunary 12, and that Dubina said “I don’t see a 

problem with that.” 34 FMSHRC at 2327-28; Tr. 111, 128-31. Dubina testified that he did not 

recall this conversation. 34 FMSHRC at 2334; Tr. 135-36. 

Initially following the UBB mine explosion, Dubina was part of MSHA’s investigation 

team in the electrical group tasked to identify electrical problems. Dubina was not an authorized 

representative of MSHA and had no authority to enforce the Mine Act on the Secretary’s behalf. 

34 FMSHRC at 2322; Tr. 20. Dubina admitted that he never explained to Schemel or any

representative of DQ that he was not an authorized representative of MSHA. 34 FMSHRC at 

2324; Tr. 48, 50, 51. 

During his role as observer, Dubina maintained daily logs corroborating DQ’s activities 

on the dates in question and reported to MSHA’s Accident Investigation (“AI”) Team any 

apparent violation he observed. 34 FMSHRC at 2323-24; Tr. 32-33, 38-39, 56; G. Ex. 6; R. Ex. 

E. Following the events of January 10 through 12, Dubina reported DQ’s activities in Zone 5 to 

Inspector McElroy, an authorized representative of MSHA’s AI Team, who prepared the citation 

at issue in this case. 34 FMSHRC at 2323, 2325. 

MSHA issued a section 104(a) citation to DQ for a violation of section 103(k) of the 

Mine Act. 34 FMSHRC at 2321; Jt. Stip. 16. Citation No. 8249977 states: 

Evidence indicates the operator worked in violation of the 

103(k) order #4642503-BB. This modification specifies “No 

person shall be permitted in Zone 5 to conduct any activities other 

than for the purpose of conducting examinations required by the 

regulations.” The operator failed to comply with this stipulation on 

01-11-2011 and 01-12-2011. Investigative activities were 

conducted in Zone 5 without modification of the k order. This 

36 FMSHRC Page 3093
condition has not be [sic] designated as “significant and 

substantial” because the conduct violated a prevision [sic] of the 

mine act rather than a mandatory safety or health standard. 

Ex. G-1; Jt. Stip. 17. The negligence was designated as high and the Secretary initially proposed 

a penalty of $112. However, in his post-hearing brief, the Secretary requested that the penalty be 

increased to $1,000 “in order to have a deterrent effect so that future MSHA accident 

investigations of major mine disasters are not compromised by operators disregarding the 

important restrictions in place under a 103(k) order.” S. Post-Hearing Br. at 20-21; 34 FMSHRC 

at 2329. 

 

 The Judge addressed the issues of whether DQ was an independent contractor under the 

Mine Act, the validity of the citation, the degree of negligence and the appropriate penalty. 34 

FMSHRC at 2321. After finding that DQ was an independent contractor under the Mine Act, the 

Judge subsequently affirmed the citation and found that MSHA did not abuse its discretion in 

modifying the section 103(k) order solely for January 10. 34 FMSHRC at 2333-38. 

 The Judge found high negligence and assessed a penalty of $1,000. Id. at 2338-39. In 

considering DQ’s level of negligence, the Judge considered DQ’s argument that it had followed 

the informal procedure to seek approval for travel to Zone 5, which was explicitly prohibited by 

the section 103(k) order. Id. at 2338. Finding that there was no contention that DQ personnel 

were not aware they were traveling to Zone 5, the Judge rejected DQ’s argument, specifically 

because the section 103(k) order, which set out the prohibitions and process for investigative 

actions by Performance and its agents, was clear on its face and because DQ “offered no 

evidence of why the belief in the informal modification procedures was reasonable.” Id. DQ 

appealed the Judge’s decision, and the Commission granted DQ’s petition with regard to whether 

the Judge erred in finding high negligence. 

II. 

Disposition

 

 Negligence is one of six criteria a Commission Judge must consider in assessing a 

penalty for a violation under the section 110(i) of the Mine Act. 30 U.S.C. § 820(i). The 

Commission has stated that a finding of high negligence “‘suggests an aggravated lack of care 

that is more than ordinary negligence.’” Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998) 

(citations omitted). The Commission noted that, in particular, “an operator’s intentional violation 

constitutes high negligence for penalty purposes.” Id. (citations omitted). 

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

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

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

Walter Res., Inc., 36 FMSHRC 1972, 1975 (Aug. 2014) (“JWR”) (quoting A.H. Smith Stone Co., 

5 FMSHRC 13, 15 (Jan. 1983)). In determining whether an operator has met its duty of care, the 

Commission considers what actions would have been taken under the same circumstances by a 

36 FMSHRC Page 3094
reasonably prudent person familiar with the mining industry, the relevant facts, and the 

protective purpose of the regulation. See U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984).5

 The Commission reviews a Judge’s finding of negligence on substantial evidence 

grounds. See, e.g., JWR, 36 FMSHRC at 1976; Mach Mining, LLC, 36 FMSHRC 1525, 1526-27 

(June 2014); Topper Coal, 20 FMSHRC at 350. Therefore, the issue before the Commission is 

whether substantial evidence supports the Judge’s finding of high negligence. 

 In support of its argument that the Judge erred in finding high negligence, DQ contends 

that the Judge did not consider mitigating circumstances related to an informal process for 

seeking modification of the section 103(k) order. However, the Judge did explicitly address the 

evidence upon which DQ relies and rejected DQ’s arguments. In his decision, the Judge stated: 

 5

 While the parties cite the Secretary’s Part 100 regulations, they apparently do so for the 

limited purpose of providing the Commission guidance in considering the issue on appeal. The 

Commission recently rejected the Secretary’s argument that the Commission must apply the 

standard of care set forth in 30 C.F.R. § 100.3(d) in considering an operator’s negligence. JWR, 

36 FMSHRC at 1975 n. 4 (“The Secretary’s Part 100 regulations apply only to the Secretary’s 

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

pursuant to section 110(i) of the Mine Act.”) (citations omitted). 

 There is no contention that DQ personnel did not know 

they were traveling to Zone 5. Rather, Respondent argues that it 

complied with the 103(k) order by informing MSHA by email or 

telephone that it planned to enter Zone 5, or seeking approval from 

Dubina to enter Zone 5. For the reasons above, I do not find DQ’s 

belief in this informal procedure to be a mitigating circumstance. 

The prohibitions and stipulations of the 103(k) order were clear on 

its face, and Respondent offered no evidence of why the belief in 

the informal modification procedures was reasonable. 

Accordingly, I find that DQ acted with high negligence when it 

violated the 103(k) order. 

34 FMSHRC at 2338. Earlier in his opinion under the violation section, the Judge addressed in 

great detail the evidence pertaining to DQ’s argument regarding an informal modification 

procedure and determined that DQ’s argument lacked merit. Id. at 2334-36. 

DQ continues to argue that it believed that it complied with the section 103(k) order by 

following informal procedures to obtain MSHA’s approval to enter Zone 5. The Secretary 

contends that DQ had knowledge of the clear language of the order, which contained no such 

procedure. It is undisputed that DQ’s investigative team entered Zone 5 on January 11 and 12. 

Although Reszka testified that he did not know that Dubina was not an authorized representative 

of MSHA who could provide DQ authorization on the spot, the Judge rejected the assertion that 

such a belief was reasonable because (1) DQ knew the terms of the section 103(k) order, which, 

as Inspector McElroy testified, required that a request for a modification be made no later than 

36 FMSHRC Page 3095
the night before, approval by MSHA, and that an authorized representative of MSHA accompany 

the operator on the day of the modification, 34 FMSHRC at 2335; Tr. 82-83, and (2) DQ 

provided no evidence of approval of an informal procedure. 34 FMSHRC at 2334. 

The Commission has held that actual knowledge of the violation and failure to act in 

compliance constitutes high negligence. Deshetty, employed by Island Creek Coal Co., 16 

FMSHRC 1046, 1053 (May 1994) (concluding that actual knowledge of violative conditions and 

failure to act constituted high negligence). 

Here, DQ knew of the restrictions on travel to Zone 5 and knowingly violated the terms 

of the section 103(k) order. Despite allegations of a good faith belief that it obtained 

authorization to enter the restricted area, the Judge concluded such belief was unreasonable. See 

Consolidation Coal Co., 14 FMSHRC 956, 969-70 (June 1992) (holding that intentional 

misconduct supports a high negligence finding). We agree. 

Even were we to accept the operator’s argument that informal modification procedures 

sufficed, the record shows that such procedures were not followed for the January 11 or 12 

investigations. As a threshold matter, the Judge properly concluded that DQ “conflate[d] the 

procedures for complying with the December 23 order by informing MSHA of its plans for the 

following day with procedures for modifying the 103(k) order in order to be permitted to travel 

to Zone 5.” 34 FMSHRC at 2334 n.5. In any event, the evidence did not reflect that DQ or 

Performance alerted MSHA that the investigative team intended to enter Zone 5 on January 11 

and 12. The Judge did not find merit in Reszka’s testimony that Prater notified MSHA via phone 

on January 10 of DQ’s intention to enter Zone 5 on January 11 because Reszka was neither on 

the call nor in the room when the alleged call was made. 34 FMSHRC at 2334; Tr. 123. In 

addition, the Judge found that DQ failed to comply with the alleged “informal procedures” 

because the email sent by Chris Prater of Performance on January 11 concerning where the 

teams were to travel on January 12 omitted reference to Tailgate 22 in Zone 5, where the DQ 

team traveled on January 12. 34 FMSHRC at 2334; DQ Ex. D. 

Also, the Judge appeared to credit Dubina’s testimony that he did not recall that either 

Reszka or Laverty sought his permission to enter Zone 5 on January 12. 34 FMSHRC at 2334; 

Tr. 134-36. The Judge declined to credit testimony from DQ’s witnesses that the company 

attempted to use “informal procedures” to modify the section 103(k) order. 34 FMSHRC 2334.

Thus, even if Dubina had the authority to permit investigators to enter Zone 5 – which he did not 

– there is no finding that he authorized DQ to enter the restricted area on January 11 and 12. We 

conclude that substantial evidence supports the Judge’s finding that both on January 11 and 12, 

DQ did not follow the alleged “informal procedures” by using prior email or phone contacts, or 

by seeking approval from Dubina, MSHA’s observer. 34 FMSHRC at 2334. 

Therefore, substantial evidence supports the Judge’s findings that the alleged informal 

procedure did not suffice to modify the section 103(k) order and, in any event, DQ did not 

comply with any “informal procedure” for modification of the order to permit entry into Zone 5. 

36 FMSHRC Page 3096
Finally, DQ argues that MSHA’s action in retroactively amending the section 103(k) 

order on January 17 to allow Performance Coal to enter Zone 5 on January 10, but not January 

11 and 12, was arbitrary and that this inconsistency reduces its level of negligence. It states that 

the modification of the order for January 10 demonstrates that Dubina had apparent authority to 

permit entry into Zone 5. This argument fails on several fronts. 

First, MSHA’s after-the-fact decision to modify the section 103(k) order cannot be used 

to show anything about the reasonableness of an asserted belief regarding Dubina’s authority on 

the preceding days when DQ entered Zone 5 without following the required procedures. Thus, it 

is not relevant to the issue of the level of DQ’s negligence. 

Second, the decision by MSHA not to cite DQ for its actions on January 10 does not 

constitute a concession that Dubina had the authority to modify the 103(k) order. MSHA’s 

witnesses testified that the decision to modify the order for January 10 was made “to cut [DQ] a 

break.” Tr. 83-84, 90-91. Dubina had erred by allowing DQ to enter Zone 5 on January 10. 

MSHA’s willingness to forego prosecution under circumstances in which an MSHA employee 

made a mistake does not amount to a concession that Dubina had the authority to permit DQ to 

enter Zone 5. 

Accordingly, we conclude that substantial evidence supports the Judge’s finding of high 

negligence. 

III. 

Conclusion

 For the foregoing reasons, we affirm the Judge’s decision. 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman 

 /s/ Robert F. Cohen, Jr.

 Robert F. Cohen, Jr., Commissioner 

 /s/ William I. Althen

 William I. Althen, Commissioner

36 FMSHRC Page 3097
Distribution: 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center, Suite 1500 

401 Liberty Avenue 

Pittsburgh, PA 15222

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 1100 

Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Administrative Law Judge Kenneth R. Andrews 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

875 Green Tree Road, 

7 Parkway Center, Suite 290 

Pittsburgh, PA 15220 

36 FMSHRC Page 3098
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

December 23, 2014 

SECRETARY OF LABOR, Docket Nos. WEST 2009-208 

 MINE SAFETY AND HEALTH WEST 2009-209 

 ADMINISTRATION (MSHA) WEST 2009-210 

WEST 2009-342 

v. WEST 2009-591 

WEST 2009-916 

HIDDEN SPLENDOR RESOURCES, INC. WEST 2009-1072 

WEST 2009-1162 

WEST 2009-1451 

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners 

DECISION

BY: Nakamura, Acting Chairman, and Althen, Commissioner 

In these civil penalty proceedings, arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), the Secretary of Labor seeks 

review of three civil penalties assessed by a Commission Administrative Law Judge for 

violations of mandatory safety standards by Hidden Splendor Resources, Incorporated. 34 

FMSHRC 3310 (Dec. 2012) (ALJ). The Secretary argues that the Judge erred by relying on 

mitigating circumstances that were irreconcilable with other penalty-related findings, by 

assessing a penalty less than the statutory minimum penalty amount, and by failing to adequately 

explain an assessment’s substantial divergence from a penalty proposed by the Department of 

Labor’s Mine Safety and Health Administration (“MSHA”). 

For the reasons that follow, we conclude that the Judge did not err by relying upon the 

mitigating circumstances and affirm that penalty. However, we conclude that the Judge erred 

with respect to the other two penalty assessments at issue. 

I. 

Order No. 8460169

A. Factual and Procedural Background

On April 10, 2009, MSHA Inspector Richard Boyle issued Order No. 8460169 to Hidden 

Splendor, alleging a training violation of 30 C.F.R. § 48.5(a). The order further alleged that the 

violation was significant and substantial (“S&S”) and had been caused by the operator’s 

36 FMSHRC Page 3099
unwarrantable failure to comply with the standard1

 and by high negligence. The inspector issued 

the order because he discovered that two new miners had worked underground without receiving 

required training. 34 FMSHRC at 3323. The inspector stated that management had told him that 

they thought it “would be okay” to have the untrained miners work underground if they were 

accompanied by experienced miners. Id.; Tr. 660-61. When the shift foreman discovered that 

the new miners had not been trained, he removed the entire crew from the mine as quickly as 

possible. 34 FMSHRC at 3324; Tr. 683-85, 687. 

 The Secretary proposed a penalty of $5,645 for the violation. The operator conceded that 

it had violated the training regulation but disputed the special findings and the designation of 

high negligence. 34 FMSHRC at 3323-24. 

 The Judge concluded that the violation was S&S and had been caused by unwarrantable 

failure and high negligence. Regarding S&S, he concluded that it was reasonably likely that the 

untrained miners could cause a serious injury to themselves or other miners underground. The 

Judge further concluded that the violation was unwarrantable because the violation was obvious 

and posed a high degree of danger, and Hidden Splendor’s belief that it could send the untrained 

miners underground defied common sense and demonstrated a serious lack of reasonable care. 

He based his high negligence finding on evidence that mine management knew that the miners 

had not completed training. The Judge acknowledged, however, that the foreman immediately 

pulled the miners from the mine when he discovered that they had not completed their training 

and, “[f]or that reason,” reduced the penalty to $4,000. Id. at 3325-26. 

 The Secretary argues that the Judge’s decision to reduce the penalty on the basis of the 

foreman’s withdrawal of the untrained miners cannot be reconciled with his high negligence and 

unwarrantable failure findings. He notes that “high negligence” is defined in 30 C.F.R. 

§ 100.3(d)2

 as occurring when “[t]he operator knew or should have known of the violative 

condition or practice, and there are no mitigating circumstances.” PDR at 17-18 (citations 

omitted).3 In addition, the Secretary asserts that the foreman’s action in withdrawing the miners 

 1

 The S&S terminology is taken from section 104(d)(1) of the Act, which distinguishes 

as more serious any violation that “could significantly and substantially contribute to the cause 

and effect of a . . . mine safety or health hazard.” The unwarrantable failure terminology is also 

taken from section 104(d)(1) of the Act, which establishes more severe sanctions for any 

violation that is caused by “an unwarrantable failure of [an] operator to comply with . . . 

mandatory health or safety standards.” 30 U.S.C. § 814(d)(1). 

2

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

omission, which falls below a standard of care established under the Mine Act to protect miners 

against the risks of harm.” 30 C.F.R. § 100.3(d). Section 100.3(d) sets forth five categories of 

negligence ranging from “no negligence” to “reckless disregard.” Each category defines the 

level of negligence and number of penalty points assigned for that level. 

3

 The Secretary has previously taken a contrary position, asserting that a Commission 

Judge acted within his discretion in assessing a penalty because Part 100 is binding only on the 

Secretary and not on Commission Judges. See Hubb Corp., 22 FMSHRC 606, 608 (May 2000). 

36 FMSHRC Page 3100
does not diminish the culpability of Hidden Splendor’s management in deciding to send the 

miners underground to work without training. Id.

B. Disposition

The Commission reviews a Judge’s civil penalty assessment under an abuse of discretion 

standard. Douglas R. Rushford Trucking, 22 FMSHRC 598, 601 (May 2000). An abuse of 

discretion may be defined to include errors of law. Utah Power & Light Co., 13 FMSHRC 1617, 

1623 n.6 (Oct. 1991). 

The Mine Act sets forth a bifurcated penalty scheme under which the “Secretary proposes 

penalties before a hearing based on information then available to him and, if the proposed 

penalty is contested, the Commission affords the opportunity for a hearing and assesses [the] 

penalty.” Sellersburg Stone Co., 5 FMSHRC 287, 291 (Mar. 1983), aff’d, 736 F.2d 1147, 1151-

52 (7th Cir. 1984). The Secretary’s regulations at 30 C.F.R. Part 100 apply only to the 

Secretary’s penalty proposals, while the Commission exercises independent “authority to assess 

all civil penalties provided [under the Act]” by applying the six criteria set forth in section 

110(i).4

 30 U.S.C. § 820(i); Sellersburg Stone Co. v. FMSHRC, 736 F.2d at 1151-52 (“[N]either 

the ALJ nor the Commission is bound by the Secretary’s proposed penalties. . . . [W]e find no 

basis upon which to conclude that [MSHA’s Part 100 penalty regulations] also govern the 

Commission.”); see also W.S. Frey Co. v. Sec’y of Labor, 57 F.3d 1068, *5 (4th Cir. 1995) 

(unpublished) (citing Sellersburg, 736 F.2d at 1152 ) (holding that a Judge is authorized to 

determine a penalty amount de novo based on statutory criteria). 

We conclude that the Judge did not abuse his discretion in assessing a $4,000 penalty 

rather than the penalty of $5,645 proposed by the Secretary. As already discussed, the Judge was 

not bound by the Secretary’s penalty proposal. In addition, the Commission’s Procedural Rules 

specifically state that, “In determining the amount of penalty, neither the Judge nor the 

Commission shall be bound by a penalty proposed by the Secretary. . . .” 29 C.F.R. 

§ 2700.30(b). Nor was the Judge bound by the Secretary’s definition of “high negligence” set

forth in section 100.3(d). See, e.g., Jim Walter Res., Inc., 36 FMSHRC 1972, 1975 n.4 (Aug. 

4

 Section 110(i) provides in pertinent part: 

The Commission shall have authority to assess all civil penalties 

provided in this Act. In assessing civil monetary penalties, the 

Commission shall consider the operator’s history of previous 

violations, the appropriateness of such penalty to the size of the 

business of the operator charged, whether the operator was 

negligent, the effect on the operator’s ability to continue in 

business, the gravity of the violation, and the demonstrated good 

faith of the person charged in attempting to achieve rapid 

compliance after notification of a violation. 

30 U.S.C. § 820(i). 

36 FMSHRC Page 3101
2014) (“We reject the Secretary’s argument that the Commission must apply the standard of care 

set forth in 30 C.F.R. § 100.3(d) in considering whether [the operator] was negligent.”); 

Deshetty, emp. by Island Creek Coal Co., 16 FMSHRC 1046, 1053 (May 1994). 

Moreover, we see no inherent inconsistency between the Judge’s findings of high 

negligence and unwarrantable failure and his assessment of a penalty lower than that proposed 

by the Secretary. Although the operator’s conduct in permitting the untrained miners to go 

underground was intentional, the operator’s conduct was offset by evidence that the foreman 

withdrew the miners from the mine as soon as he realized the miners were untrained rather than 

waiting until the end of the shift. 34 FMSHRC at 3324, 3325-26; Tr. 685. The foreman’s 

conduct, which is imputable to the operator for civil penalty and unwarrantable failure purposes, 

promoted miner safety and is to be encouraged. Rochester & Pittsburgh Coal Co., 13 FMSHRC 

189, 194 (Feb. 1991) (stating that the conduct of an operator’s agents may be imputed to the 

operator for civil penalty and unwarrantable failure purposes). Accordingly, we affirm the 

$4,000 penalty related to Order No. 8460169. 

II. 

Order No. 8457347

A. Factual and Procedural Background

On July 29, 2009, MSHA Inspector DeVere Smith observed accumulations of float coal 

dust and coal fines on and around the No. 1 surface belt tailpiece. 34 FMSHRC at 3357. The 

inspector considered the condition to be obvious and extensive, and noted that a supervisor had 

recently traveled through the area. Tr. 511-12. The inspector issued Order No. 8457347 to 

Hidden Splendor, pursuant to section 104(d)(2) of the Act, 30 U.S.C. § 814(d)(2). The order 

alleged an S&S and unwarrantable accumulations violation of 30 C.F.R. § 77.1104, which had 

been caused by high negligence. Hidden Splendor stipulated that it had violated the standard. 

34 FMSHRC at 3357, 3359. 

Following a hearing on the matter, the Judge found that the violation was unwarrantable 

and had been caused by high negligence. However, the Judge concluded that the violation was 

not S&S. Id. at 3359-60. Accordingly, the Judge assessed a penalty of $500 rather than the 

penalty of $4,000 proposed by the Secretary. Id. at 3357, 3360. 

On review, the Secretary argues that the Judge erred by assessing a penalty below the 

statutory minimum required by section 110(a)(3)(B) of the Mine Act.5

 The Secretary does not 

challenge the Judge’s determination that the violation was not S&S. 

5

 Section 110(a)(3)(B) of the Mine Act provides, “The minimum penalty for any order 

issued under section 104(d)(2) shall be $4,000.” 30 U.S.C. § 820(a)(3)(B). 

36 FMSHRC Page 3102
B. Disposition

Section 110(i) of the Mine Act grants the Commission the authority to assess all civil 

penalties under the Act in accordance with the six criteria listed. 30 U.S.C. § 820(i). Section 

110(a)(3) of the Mine Act sets forth minimum penalty assessment provisions for citations and 

orders issued under section 104(d) of the Act. More specifically, section 110(a)(3)(B) sets forth 

a minimum penalty of $4,000 for any order issued under section 104(d)(2). 

The statutory minimum provisions set forth in section 110(a)(3) are binding upon the 

Commission and its Judges. Stansley Mineral Res., Inc., 35 FMSHRC 1177, 1180 (May 2013). 

The Commission has explained that sections 110(i) and 110(a)(3) “confer broad discretionary 

authority upon the Commission and its Judges to apply the criteria in section 110(i), but require 

that no penalty for a section 104(d) citation or order may be assessed at less than the statutory 

minimums in section 110(a)(3).” Id.

Here, the Judge sustained the allegations of unwarrantable failure underlying the section 

104(d)(2) order. In addition, he adequately addressed each of the six factors required for 

consideration under section 110(i). However, the Judge erred by assessing a penalty of less than 

$4,000 for a section 104(d)(2) order. Finding no fault otherwise in the reasoning underlying his 

assessment, we vacate the penalty assessed by the Judge and impose the $4,000 minimum 

penalty required by the Mine Act. 

III. 

Citation No. 6685833

A. Factual and Procedural Background

On August 11, 2008, MSHA Inspector Russell Bloomer issued Citation No. 6685833 to 

Hidden Splendor, alleging that an S&S roof control violation of 30 C.F.R. § 75.202(a) was 

caused by high negligence. The citation alleged bad roof conditions in the mine, including areas 

where material had fallen and had exposed roof bolts. The inspector testified that the Horizon 

Mine had a history of repeated roof control violations. The Secretary proposed a penalty of 

$6,458 for the violation. 34 FMSHRC at 3378. 

The Judge found that the operator violated the standard and that the violation was S&S 

and caused by high negligence. With respect to S&S, the Judge credited the inspector’s 

testimony regarding the roof conditions and the mine’s history of roof falls. Regarding 

negligence, the Judge found that the conditions were obvious, extensive, and had existed for 

“quite some time.” Id. at 3379-80. He further stated that a roof fall had potentially fatal 

consequences to miners, and that the operator had made no effort to correct the conditions. After 

finding high negligence, the Judge stated that, “[a] penalty of $5,000 is appropriate for this 

violation.” Id. at 3380. 

36 FMSHRC Page 3103
The Secretary argues that the Judge erred by substantially deviating from MSHA’s 

proposed penalty for the citation without any explanation. The Secretary explains that the 

Judge’s assessment of a penalty 23% lower than the proposed penalty requires more explanation 

than that the assessed penalty is “appropriate.” 

B. Disposition

In a contested case, the amount of the penalty to be assessed by the Commission and its 

Judges is a de novo determination based on the criteria set forth in section 110(i), 30 U.S.C. 

§ 820(i). Sellersburg Stone, 5 FMSHRC at 293. Penalties assessed by Commission Judges can

be greater than, less than, or the same as those proposed by the Secretary. Id. However, when it 

is determined, based on further information developed in an adjudicative proceeding, that 

penalties should be assessed which substantially diverge from those originally proposed, Judges 

must sufficiently explain the bases underlying the penalties assessed. Id.; Cantera Green, 22 

FMSHRC 616, 622-23 (May 2000). 

Here, the Judge considered and made findings on all six section 110(i) factors and 

assessed a penalty that was 23% below that proposed by the Secretary. 34 FMSHRC at 3380-81. 

However, the Judge did not offer any explanation for the divergence, for instance, by explaining 

whether he gave special weight to various criteria, and thus failed to provide the basis for 

meaningful review of the penalty by the Commission. See Cantera Green, 22 FMSHRC at 622-

23, 626 (vacating assessed penalties that ranged from 20% to 70% of the proposed penalties 

because Judge failed to explain divergence although he made findings on penalty criteria). 

Accordingly, we remand the penalty associated with Citation No. 6685833 to the Judge for 

further explanation consistent with this decision. 

IV. 

Conclusion

For the reasons discussed above, with respect to Order No. 8460169, we affirm the 

Judge’s assessment of a penalty in the amount of $4,000. With respect to Order No. 8457347, 

we vacate the penalty of $500 assessed by the Judge and hereby assess a penalty in the amount of 

$4,000. Finally, we remand the penalty associated with Citation No. 6685833 to the Judge for 

further explanation consistent with this decision. 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman 

/s/ William I. Althen

William I. Althen, Commissioner 

36 FMSHRC Page 3104
Commissioner Cohen, concurring: 

Commissioner Cohen joins the majority with respect to their decision regarding Order 

No. 8457347 and Citation No. 6685833, and concurs with their decision regarding Order 

No. 8460169. 

Order No. 8460169

The Secretary contends that after finding high negligence and unwarrantable failure, the 

Judge erred in reducing MSHA’s proposed penalty. According to the Secretary, the Judge relied 

on “a reason that should not have been considered after he found that the violation was the result 

of mine management’s high negligence.” PDR at 2. I concur with my colleagues’ conclusion 

that the Judge did not err when he reduced the civil penalty for Order No. 8460169. Rather, the 

Judge’s analysis reflects a thoughtful balancing of the statutory penalty criteria he is required to 

consider when exercising his authority to assess civil penalties. I write separately in order to 

more fully discuss why the Judge’s Decision fully reflects the principles contained in the Mine 

Act. 

The Secretary’s argument is predicated on the definition of “high negligence” found in 30 

C.F.R. § 100.3(d) (Table X): “The operator knew or should have known of the violative 

condition or practice, and there are no mitigating circumstances.” Essentially, the Secretary’s 

argument is that: (1) the Commission and its Judges are bound by the definitions of negligence 

contained in section 100.3(d); (2) the Judge’s finding of “high negligence” meant that he was 

precluded from finding any mitigating circumstances; (3) the fact relied on by the Judge in 

reducing the penalty -- the section foreman stopped production and pulled all the miners from the 

section as soon as he discovered that management had sent two untrained miners to work there -- 

was not a mitigating circumstance; and (4) because the Judge relied on a mitigating 

circumstance, his assessment was inconsistent with his finding of high negligence. 

The Secretary’s argument does not reflect a correct understanding of the penalty 

provisions of the Mine Act. As my colleagues have noted, slip op. at 3-4, the Mine Act 

establishes a bifurcated mechanism for the proposal and assessment of civil penalties. The 

Secretary initially proposes a civil penalty for a citation or order under section 105(a), and – if 

the operator contests the proposed penalty – the Commission holds a hearing and assesses the 

final penalty pursuant to section 110(i). 30 U.S.C. §§ 815(a), 820(i).1

 Sellersburg Stone Co., 5 

FMSHRC 287, 291 (Mar. 1983), aff’d, 736 F.2d 1147, 1151-52 (7th Cir. 1984). 

1

 The Commission considers six statutory factors in assessing a penalty: (1) the 

operator’s history of previous violations, (2) the appropriateness of such penalty to the size of the 

business of the operator charged, (3) whether the operator was negligent, (4) the effect on the 

operator’s ability to continue in business, (5) the gravity of the violation, and (6) the 

demonstrated good faith of the operator charged in attempting to achieve rapid compliance after 

notification of a violation. See 30 U.S.C. § 820(i). 

36 FMSHRC Page 3105
To assist in his responsibility to propose civil penalties, the Secretary promulgated 

regulations at 30 C.F.R. § 100. See 30 C.F.R. § 100.1 (“This part provides the criteria and 

procedures for proposing civil penalties under sections 105 and 110 of the [Mine Act].”) The 

Part 100 regulations assign “points” that correlate generally with the six statutory criteria. See 30 

C.F.R. § 100.3 (Tables I-XIII). MSHA’s proposed penalty is then calculated based on the 

number of points. 

The Secretary proposed a penalty of $5,645 for the order at issue. The amount of the 

proposed penalty was based, in part, on the Secretary’s allegation that the violation was the result 

of “high negligence” on the part of the operator.2 Gov. Ex. 38. 

After a hearing on the merits, the Judge concluded that the failure to train the miners in 

accordance with 30 C.F.R. § 48.5 was a very dangerous practice, reasonably likely to result in 

serious injury. The Judge found that the violation was indeed the result of a high degree of 

negligence because the management at Hidden Splendor knew that two miners had not finished 

their training, but nevertheless sent the miners underground to work. 34 FMSHRC at 3325. 

The Judge then noted that when section foreman Carl Martinez discovered that the 

miners had not completed their training, he immediately withdrew the entire crew from the mine. 

Id. at 3324, 3325-26; Tr. 683-85, 687. In consideration of the prompt remedial actions of the 

section foreman, the Judge lowered the civil penalty to $4,000. 

Contrary to the Secretary’s assertion, there is no inherent contradiction between the 

Judge’s finding of high negligence and his reduction of the penalty because of the section 

foreman’s safety-conscious action. 

 2

 Mine inspectors issue citations on MSHA Form 7000-3. The form includes five 

options for negligence: no negligence, low negligence, moderate negligence, high negligence, 

and reckless disregard. When issuing the citation, the inspector must check a box designating an 

assignment of negligence which he believes most closely resembles the culpability of the 

operator for the violative condition at issue. Mine inspectors are directed to consider the 

surrounding circumstances in accordance with the definitions of the categories of negligence that 

are provided in the Part 100 regulations. 

The associated definitions are as follows: No negligence - the operator exercised 

diligence and could not have known of the violative condition or practice; Low negligence – the 

operator knew of or should have known of the violative condition or practice, but there are 

considerable mitigating circumstances; Moderate negligence – the operator knew or should have 

known of the violative condition or practice, but there are mitigating circumstances; High 

negligence – the operator knew or should have known of the violative condition or practice, and 

there are no mitigating circumstances; Reckless disregard – the operator displayed conduct 

which exhibits the absence of the slightest degree of care. 30 C.F.R. § 100.3(d) (Table X) 

(emphasis added). 

The greater the degree of negligence designated by the inspector, the more “penalty 

points” are assigned during the penalty proposal process, and the higher the penalty. Id. 

36 FMSHRC Page 3106
The Commission and its Judges are not bound by the definitions in Part 100, but instead 

assess penalties in accordance with the six statutory criteria set forth in section 110(i) of the Act 

“and the information relevant thereto developed in the course of the adjudicative proceeding.” 

Sellersburg Stone, 5 FMSHRC at 292; see also Black Diamond Coal Mining Co., 7 FMSHRC 

117, 1122 (Aug. 1985) (“The separate procedures by which penalty assessments are proposed by 

the Secretary . . . are not material to a penalty assessment by the Commission.”). Indeed, the 

Commission has recently specifically rejected the Secretary’s argument that the Commission 

must apply the standard of care set forth in section 100.3(d) in considering an operator’s 

negligence. Jim Walter Res., Inc., 36 FMSHRC 1972, 1975 n.4 (Aug. 2014) (“The Secretary’s 

Part 100 regulations apply only to the Secretary’s penalty proposals, while the Commission 

exercises independent authority to assess penalties pursuant to section 110(i) of the Mine Act.”) 

(citations omitted). 

 

 The Seventh Circuit has directly considered the application of the Secretary’s penalty 

proposal regulations to the Commission and concluded that there was “no basis upon which to 

conclude that these MSHA regulations also govern the Commission.” Sellersburg Stone Co. v. 

FMSHRC, supra, 736 F.2d at 1152. The Court further stated: 

It cannot be disputed that the Commission and its ALJs constitute 

an adjudicative body that is independent of the MSHA. Sen. Rep. 

No. 461, 95th Cong. 1st Sess. 38 (1977). This body is governed by 

its own regulations, which explicitly state that, in assessing 

penalties, it need not adopt the proposed penalties of the Secretary. 

29 C.F.R. § 2700.29(b) (1983). Furthermore, neither the Act nor 

the Commission’s regulations require the Commission to apply the 

formula for determining penalty proposals that is set forth in 

section 100.3 of the MSHA regulations. 

Id.3

 3

 I recognize that some courts have applied the Secretary’s Part 100 regulations when 

considering a Judge’s negligence finding and assessment of a penalty. Black Beauty Coal Co. v. 

FMSHRC, 703 F.3d 553, 561 (D.C. Cir. 2012) (defining “high negligence” in accordance with 

section 100.3(d)); see also Allied Products Co. v. FMSHRC, 666 F.2d 890, 895-96 (5th Cir. 

1982) (applying Part 100 regulations in determining whether the Judge abused his discretion in 

assessing a penalty). In addition, in an unpublished decision, the D.C. Circuit stated that the 

penalty regulations required the Judge to adjust the negligence finding to “moderate negligence” 

because he found a mitigating circumstance. Excel Mining, LLC v. Dep’t of Labor, 497 

Fed.Appx. 78, 80; 2013 WL 1155362 (D.C. Cir. Mar. 15, 2013). However, these cases are 

distinguishable because the issue of whether the Secretary’s Part 100 regulations are binding on 

the Commission was not directly before the courts in these proceedings. Thus, the statements 

regarding the applicability of Part 100 are dicta. In contrast, in Sellersburg Stone, the issue of 

whether the Judge was required to apply section 100.3 in his assessment of penalties was directly 

at issue. 

36 FMSHRC Page 3107
 The definitions in 30 C.F.R. § 100.3(d) make sense in light of the purpose for which they 

were created. As described supra in footnote 2, the categories of low negligence, moderate 

negligence and high negligence are all characterized by the finding that the operator “knew or 

should have known of the violative condition or practice. What distinguishes the three 

categories are the existence and amount of “mitigating circumstances” -- if no mitigating 

circumstances, the negligence is “high”; if considerable” mitigating circumstances, the 

negligence is “low”; and if there simply “are” mitigating circumstances, the negligence is 

“moderate”. This sets up a system which is easily applicable by MSHA inspectors at mine sites. 

They deal with thousands of violations where the amount of negligence has to be rated. With 

this system, they can do it efficiently and quickly (as they must) – if no mitigating circumstances, 

check “high”; if considerable mitigating circumstances, check “low”; if somewhere in between, 

“moderate”. 

In contrast, Commission Judges can evaluate all of the evidence presented to them after a 

full hearing and take a more nuanced approach to the degree of negligence. Thus, there is a very 

different process for the Judge to evaluate negligence compared with the inspector at the mine 

site. The criteria of 30 C.F.R. § 100.3(d) make sense for inspectors at the mine site, but are too 

mechanical for Commission Judges. 

 The Commission has not promulgated a definition of “high negligence”. But the 

Commission has stated that high negligence “suggests an aggravated lack of care that is more 

than ordinary negligence” and “an operator’s intentional violation constitutes high negligence for 

penalty purposes.” Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998). In Deshetty, employed 

by Island Creek Coal Co., 16 FMSHRC 1046, 1053 (May 1994), despite the claim of mitigating 

circumstances, the Commission upheld an ALJ’s conclusion of high negligence based on 

findings “that Deshetty had actual knowledge of the accumulations along the No. 1 belt and that 

he failed to remedy the conditions.” 

Although Topper Coal and Deshetty provide examples and useful statements about high 

negligence, they do not completely define its parameters. Nevertheless, it is clear that a single 

mitigating circumstance does not preclude the finding of high negligence. I would suggest that 

the application of the Secretary’s definition of high negligence goes beyond the Sellersburg 

Stone – Jim Walters Resources proposition that Commission Judges are not bound by the 

Secretary’s definition. Rather, I conclude that the 30 C.F.R. § 100.3(d) definition of high 

negligence is too restrictive, and should not be used by Commission Judges. 

 In the present case, the Judge found a high degree of negligence because management 

sent two new miners into the mine, knowing that they had not completed their training: “The fact 

that Joe Fielder thought it would be permissible to send the new miners into the mine supports 

the fact that management knew that these miners had not completed training.” 34 FMSHRC at 

3325. The violation, together with its high negligence, was complete when the two untrained 

miners entered the mine. 

 What section foreman Martinez did was in the nature of abatement – “as soon as 

Martinez discovered that the miners had not completed their training, he immediately pulled 

them out of the mine.” Id. at 3325-26. One of the factors to be considered in setting a penalty 

36 FMSHRC Page 3108
pursuant to section 110(i) of the Mine Act is “the demonstrated good faith of the person charged 

in attempting to achieve rapid compliance after notification of a violation”. 30 U.S.C. § 820(i). 

Here, in ordering the miners out of the mine, section foreman Martinez did not wait for 

“notification of a violation”. He took action immediately. Since a Judge is statutorily required 

to consider the mine’s promptness in abating a violation after notification by MSHA, it is 

certainly appropriate for the Judge to consider a section foreman’s prompt action in averting a 

hazard before an MSHA inspector appeared on the scene. 

 In Spartan Mining Co., 30 FMSHRC 699, 710, 722-26 (Aug. 2008), the Commission 

affirmed a Judge’s decision to substantially increase penalties because of extreme negligence on 

the part of a section foreman. Conversely, it is appropriate for a Judge to reduce a penalty where 

a section foreman takes decisive action to enhance miners’ safety even when his superiors 

created the hazard by flouting the law. When assessing a civil penalty a Commission Judge may 

consider the deterrent purposes of a civil penalty within his analysis of the statutory criteria. 

Black Beauty Coal Co., 34 FMSHRC 1856, 1866-67 (Aug. 2012). Lowering a civil penalty, 

after crediting a foreman’s proactive behavior in abating a violative condition before it was cited, 

is consistent with the deterrent purposes of a civil penalty. Stated another way, lowering a 

penalty based on abatement prior to the issuance of a citation encourages vigilance and works to 

deter the existence of violative and unsafe conditions. 

I find no inconsistency in the Judge’s application of the six penalty criteria. I conclude 

that the Judge’s analysis is well reasoned and does not reflect an abuse of discretion. Rather, the 

Judge’s analysis reflects an appropriate exercise of the discretion that was afforded to the 

Commission by Congress to assess civil penalties. Thus, I join my colleagues in affirming the 

$4,000 penalty for Order No. 8460169. 

 /s/ Robert F. Cohen, Jr.

 Robert F. Cohen, Jr., Commissioner 

36 FMSHRC Page 3109

COMMISSION ORDERS
36 FMSHRC Page 3110
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

December 11, 2014 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. Docket Nos. WEVA 2014-82-R, et al.1

BRODY MINING, LLC 

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012). On December 1, 2014, the Secretary of Labor filed with the Commission a

document entitled “Petition for Discretionary Review.” The Secretary seeks review of a 

Decision issued by an Administrative Law Judge on November 3, 2014, in which he dismissed 

the Pattern of Violation (“POV”) Notice issued by the Secretary to Brody Mining, LLC. 

(“Brody”) on October 24, 2013. 36 FMSHRC __, slip op. at 19, Nos. WEVA 2014-82-R, 

(Nov. 1, 2014) (ALJ). The Judge’s decision was not a final order. Nonetheless, the Secretary 

has appealed the decision on the basis of the collateral order doctrine. As explained below, the 

collateral order doctrine does not apply to this case at this juncture. Therefore, we deny the 

petition for review. 

Under section 104(e)(1) of the Mine Act, if an operator has a pattern of violations of 

mandatory health or safety standards which could significantly and substantially contribute to the 

cause and effect of health or safety hazards, it shall be given written notice that such a pattern

1

 The relevant docket numbers involved in this proceeding are listed in Appendix A, 

attached to this decision. 

36 FMSHRC Page 3111
exists.2

 If, within 90 days following issuance of the POV Notice, an inspector cites the operator 

for a significant and substantial (“S&S”)3violation, then the Department of Labor’s Mine Safety 

and Health Administration (“MSHA”) may issue a withdrawal order under section 104(e)(1) of 

the Act. 30 U.S.C. § 814(e)(1). 

Background

On October 24, 2013, the Secretary notified Brody that a pattern of violations existed at 

its Brody No. 1 Mine. In response, Brody filed a contest of the POV Notice. 

In an Order dated January 30, 2014, Chief Administrative Law Judge Robert Lesnick 

dismissed Brody’s challenge to the POV Notice itself (Docket No. WEVA 2014-81-R) for lack 

of jurisdiction. Brody Mining, LLC, 36 FMSHRC 284, 287 (Jan. 2014). The Judge found, 

however, that he had jurisdiction to hear any contest of an order issued pursuant to section 104(e) 

of the Act and any properly contested citation or order relied upon by the Secretary in issuing the 

2

 Section 104(e) of the Mine Act, 30 U.S.C. § 814(e), states, in relevant part: 

(1) If an operator has a pattern of violations of mandatory health or safety 

standards in the coal or other mine which are of such nature as could have 

significantly and substantially contributed to the cause and effect of coal 

or other mine health or safety hazards, he shall be given written notice that 

such pattern exists. If, upon any inspection within 90 days after the 

issuance of such notice, an authorized representative of the Secretary finds 

any violation of a mandatory health or safety standard which could 

significantly and substantially contribute to the cause and effect of a coal 

or other mine safety or health hazard, the authorized representative shall 

issue an order requiring the operator to cause all persons in the area 

affected by such violation, except those persons referred to in subsection 

(c), to be withdrawn from, and to be prohibited from entering, such area 

until an authorized representative of the Secretary determines that such 

violation has been abated. 

(2) If a withdrawal order with respect to any area in a coal or other mine has 

been issued pursuant to paragraph (1), a withdrawal order shall be issued 

by an authorized representative of the Secretary who finds upon any 

subsequent inspection the existence in such mine of any violation of a 

mandatory health or safety standard which could significantly and 

substantially contribute to the cause and effect of a coal or other mine 

health of safety hazard. The withdrawal order shall remain in effect until 

an authorized representative of the Secretary determines that such 

violation has been abated. 

3

 The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.§ 814(d)(l), 

which distinguishes as more serious any violation that "could significantly and substantially 

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

36 FMSHRC Page 3112
POV Notice. He further found that after the date of issuance of the POV Notice numerous 

section 104(e) withdrawal orders had been issued against Brody and that such orders were still 

being issued as of the date of his order. He consolidated those contests with the existing contests 

and stated that all future section 104(e) withdrawal orders would be consolidated into the 

proceeding, as well. Id. at 293. 

Chief Judge Lesnick upheld the facial validity and constitutionality of the POV 

regulations.4

 Id. at 301-08. He remanded the cases for further proceedings and assigned a new 

Judge to the cases. 

On November 3, 2014, the newly-assigned Judge entered the order with respect to which 

the Secretary has filed the current petition for discretionary review. 5 The Judge found the POV 

Notice unconstitutional as applied by the Secretary and dismissed the POV Notice. Order at 17-

19. The Judge further ruled on each of the 54 alleged S&S violations the Secretary had asserted

as constituting the pattern of violations. Twenty-nine of those alleged S&S violations were 

sustained. Because the Judge had ruled the POV Notice was unconstitutional as applied, he did 

not decide whether those 29 S&S violations constituted a pattern of violations. Nor did the 

Judge specifically rule on the validity of the section 104(e) withdrawal orders. 6

Disposition

In this proceeding contesting the issuance of a POV Notice, the Judge disposed of all of 

the S&S citations and orders underlying the notice. However, he did not dispose of 357 nonS&S citations and orders. Thus, the November 3, 2014 decision is not a final decision. See 29 

C.F.R. § 2700.69.7 However, while recognizing the decision is not final, the Secretary asserts 

4

 That decision was reviewed and affirmed by the Commission on an interlocutory basis. 

Brody Mining, LLC, 36 FMSHRC 2027 (Aug. 2014), and is presently on appeal before the U.S. 

Court of Appeals for the D.C. Circuit, Docket No. 14-1171. 

5

 The Judge specifically noted the consolidation of the cases challenging the citations 

and orders underlying the POV Notice with later cases challenging withdrawal orders based 

upon the POV Notice. Order at 1, n.1. 

6

 Commissioner Cohen notes that the Judge’s ruling on the validity of the POV Notice, 

without also ruling on the withdrawal orders issued pursuant to the notice, is in apparent conflict 

with Chief Judge Lesnick’s previous finding that the Commission lacks jurisdiction to consider a 

POV Notice standing alone. 

7

 Rule § 2700.69(a) states, in relevant part: 

Form and content of the Judge’s decision. The Judge shall make a decision 

that constitutes his final disposition of the proceedings. The decision shall be in 

writing and shall include all findings of fact and conclusions of law, and the reasons 

or bases for them, on all the material issues of fact, law or discretion presented by the 

record, and an order. 

that the Judge’s decision is an appealable order under the collateral order doctrine. PDR at 2. 

36 FMSHRC Page 3113
The collateral order doctrine is a practical construction of the final judgment rule which 

has been applied in federal courts. The final judgment rule permits appeal only from “all final

decisions” of a district court. 28 U.S.C. § 1291 (emphasis added). In Cohen v. Beneficial 

Industrial Loan Corporation, 337 U.S. 541, 546 (1949), the Supreme Court recognized that 

appeals of a small class of decisions which appear interlocutory in nature must be permitted if 

those decisions “finally determine claims of right separable from, and collateral to, rights 

asserted in the action, too important to be denied review and too independent of the cause itself 

to require that appellate consideration be deferred until the whole case is adjudicated.” The 

Court cautioned, however, that appeal gives an upper court “a power of review not one of 

intervention.” Id. Thus, if a matter remains “open, unfinished or inconclusive, there may be no 

intrusion by appeal.” Id. 

The Supreme Court has clarified that there are three prongs that must be satisfied under 

the collateral order doctrine. Specifically, an order that does not conclude an action may 

nonetheless be immediately appealable if it: (1) conclusively determines the disputed question; 

(2) resolves an important issue separate from the merits of the action; and (3) is effectively 

unreviewable on an appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 

468 (1978). In order to be reviewable, the order must satisfy all three requirements. Stringfellow 

v. Concerned Neighbors in Action, 480 U.S. 370, 375 (1987).

The Secretary has failed to satisfy the third prong of this test.8

 The Secretary’s argument 

is not that the Judge’s decision would be unreviewable on final appeal. Rather, he argues that 

the decision “would be effectively unreviewable on appeal from a final order in light of the 

irreparable harm to the health and safety of Brody’s miners as long as the ALJ’s dismissal of the 

POV Notice remains in effect.” PDR at 3. However, he overlooks the availability of 

interlocutory review of the Judge’s decision, as set forth in the Commission’s procedural rules. 

The issue the Judge decided and which the Secretary seeks to appeal is currently reviewable 

under those rules. 

Pursuant to Commission Procedural Rule 76, 29 C.F.R. § 2700.76, the Commission may 

review a Judge’s ruling, prior to the Judge’s final decision in the case, if certain conditions are 

met. First, pursuant to Rule 76(a)(1), either the Judge must certify that his or her interlocutory 

ruling involves a controlling question of law and that immediate review will materially advance 

the final disposition of the proceeding, or the Judge must deny a party’s motion for certification 

of the interlocutory ruling to the Commission and the party must file with the Commission a 

petition for interlocutory review within 30 days of the Judge’s denial of such motion for 

certification. Second, under Rule 76(a)(2), a majority of the Commission members must 

conclude that the Judge’s interlocutory ruling involves a controlling question of law and that 

immediate review may materially advance the final disposition of the proceeding. 

8

 Because we conclude that the third prong of the collateral order doctrine has not been 

satisfied, we need not reach the remaining prongs. Performance Coal Co., 32 FMSHRC 1212, 

1217 (Oct. 2010). 

36 FMSHRC Page 3114
 In this case, the Secretary did not ask the Judge to certify his ruling for interlocutory 

review and, of course, the Judge has not denied any such request. Thus, the Secretary has not 

followed the necessary procedures to seek interlocutory review. 

 Given the Secretary’s concerns regarding irreparable harm, we would expect a motion for 

interlocutory review to be promptly brought before the Commission either by certification by the 

Judge or petition of the Secretary. 

 For the reasons set forth above, the petition filed by the Secretary is denied.9

 

 

 /s/ Patrick K. Nakamura

 Patrick K. Nakamura, Acting Chairman 

 

 

 /s/ Robert F. Cohen, Jr.

 Robert F. Cohen, Jr., Commissioner 

 

 

 /s/ William I. Althen

 William I. Althen, Commissioner 

 

 

 

 

 9

 We are without jurisdiction to consider the Secretary’s Emergency Motion to Stay. 

36 FMSHRC Page 3115
APPENDIX A 

WEVA 2014-83-R 

WEVA 2014-86-R 

WEVA 2014-87-R 

WEVA 2014-97-R 

WEVA 2014-151-R 

WEVA 2014-161-R 

WEVA 2014-190-R 

WEVA 2014-191-R 

WEVA 2014-192-R 

WEVA 2014-193-R 

WEVA 2014-221-R 

WEVA 2014-244-R 

WEVA 2014-284-R 

WEVA 2014-285-R 

WEVA 2014-447-R 

WEVA 2014-448-R 

WEVA 2014-449-R 

WEVA 2014-450-R 

WEVA 2014-451-R 

WEVA 2014-452-R 

WEVA 2014-453-R 

WEVA 2014-454-R 

WEVA 2014-455-R 

WEVA 2014-456-R 

36 FMSHRC Page 3116
WEVA 2014-457-R 

WEVA 2014-479-R 

WEVA 2014-480-R 

WEVA 2014-529-R 

WEVA 2014-530-R 

WEVA 2014-531-R 

WEVA 2014-537-R 

WEVA 2014-539-R 

WEVA 2014-561-R 

WEVA 2014-562-R 

WEVA 2014-563-R 

WEVA 2014-570-R 

WEVA 2014-571-R 

WEVA 2014-572-R 

WEVA 2014-593-R 

WEVA 2014-594-R 

WEVA 2014-638-R 

WEVA 2014-639-R 

WEVA 2014-640-R 

WEVA 2014-641-R 

WEVA 2014-672-R 

WEVA 2014-673-R 

WEVA 2014-674-R 

WEVA 2014-675-R 

WEVA 2014-676-R 

36 FMSHRC Page 3117
WEVA 2014-678-R 

WEVA 2014-679-R 

WEVA 2014-680-R 

WEVA 2014-681-R 

WEVA 2014-715-R 

WEVA 2014-716-R 

WEVA 2014-717-R 

WEVA 2014-718-R 

WEVA 2014-719-R 

WEVA 2014-720-R 

WEVA 2014-722-R 

WEVA 2014-745-R 

WEVA 2014-804-R 

WEVA 2014-805-R 

WEVA 2014-806-R 

WEVA 2014-807-R 

WEVA 2014-811-R 

WEVA 2014-813-R 

WEVA 2014-814-R 

WEVA 2014-819-R 

WEVA 2014-854-R 

WEVA 2014-855-R 

WEVA 2014-856-R 

WEVA 2014-909-R 

WEVA 2014-974-R 

36 FMSHRC Page 3118
WEVA 2014-975-R 

WEVA 2014-976-R 

WEVA 2014-1012-R 

WEVA 2014-1013-R 

WEVA 2014-1035-R 

WEVA 2014-1036-R 

WEVA 2014-1037-R 

WEVA 2014-1038-R 

WEVA 2014-1135-R 

WEVA 2014-1138-R 

WEVA 2014-1157-R 

WEVA 2014-1993-R 

WEVA 2014-1994-R 

WEVA 2014-1995-R 

WEVA 2014-1996-R 

WEVA 2014-2172-R 

WEVA 2014-2173-R 

WEVA 2014-2174-R 

WEVA 2014-2175-R 

WEVA 2014-2221-R 

WEVA 2015-59-R 

WEVA 2015-60-R 

WEVA 2015-61-R 

WEVA 2015-63-R 

WEVA 2015-66-R 

36 FMSHRC Page 3119
WEVA 2015-67-R 

WEVA 2015-68-R 

WEVA 2015-121-R 

WEVA 2013-370 

WEVA 2013-564 

WEVA 2013-997 

WEVA 2013-1055 

WEVA 2013-1189 

WEVA 2014-619 

WEVA 2013-620 

WEVA 2014-702 

WEVA 2014-842 

36 FMSHRC Page 3120
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

December 23, 2014

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA)

v.

BLUESTONE QUARRIES, INC.

Docket No. 

A.C. No. 

SE 2011-577-M

09-00996-255476

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) (“Mine Act”). On September 4, 2013, the Commission received from

Bluestone Quarries (“Bluestone”) a motion seeking to reopen a penalty assessment proceeding

and relieve it from the Default Order entered against it.

On January 18, 2012, the Chief Administrative Law Judge issued an Order to Show

Cause in response to Bluestone’s perceived failure to answer the Secretary of Labor’s June 23,

2011 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was

deemed a Default Order on February 21, 2012, when it appeared that the operator had not filed

an answer within 30 days.

Bluestone asserts that it sent an answer to the Order to Show Cause on February 8, 2012

by certified mail. Bluestone provides a copy of the answer, along with an e-mail sent to the CLR

assigned to the case at the time, confirming that the answer was mailed. Bluestone fails,

however, to provide a certified mail receipt to prove delivery of the answer. 

The Secretary of Labor opposes the request to reopen. The Secretary notes that the

Commission has no record of ever receiving Bluestone’s answer to the Judge’s show cause

order. The Secretary further asserts that the operator failed to follow up with the Judge to make

sure that he received its reply. Finally, the Secretary emphasizes that Bluestone does not explain

why it waited approximately one and a half years to submit its motion to reopen after the Default

Order became effective, even though a delinquency letter was sent to Bluestone on June 14,

2012.

The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. 

§ 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s

decision may be sought by filing a petition for discretionary review within 30 days of its

issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not

direct review within 40 days of a decision’s issuance, it becomes a final decision of the

36 FMSHRC Page 3121
Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final

decision of the Commission.

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

reopen assessments that have become final Commission orders. Jim Walter Res., Inc., 15 

FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to reopen final section 

105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil 

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

Commission on the basis of mistake, inadvertence, or excusable neglect. See 29 C.F.R. § 

2700.1(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 held that, in accordance 

with Rule 60(c) of the Federal Rules of Civil Procedure, a Rule 60(b) motion shall be made 

within a reasonable time, and in the case of mistake, inadvertence or excusable neglect, not more 

than one year after the order was entered or, in this case, became effective. Newmont USA, Ltd., 

31 FMSHRC 808, 809 (Jul. 2009); JS Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004); 

Lakeview Rock Products, 19 FMSHRC 26, 28 (Jan. 1997).

As noted above, Bluestone failed to provide a certified mail receipt to prove delivery of

the answer. Thus, we hereby remand the proceeding to the Chief Administrative Law Judge to 

determine if the operator in fact replied to the Order to Show Cause. If the operator

demonstrates that it replied as asserted, we will conclude that the operator was not in default

under the terms of the Order to Show Cause as it timely complied with the Order. See Vulcan

Construction Materials, 33 FMSHRC 2164 (Sept. 2011). Thus, the Default Order would be

rendered a nullity, and the Chief Administrative Law Judge should conduct further proceedings

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

however, the operator fails to demonstrate that it replied to the Order to Show Cause,

Bluestone’s motion to reopen will be denied because it waited for over one year to submit its

motion to reopen after the Default Order became effective.

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

36 FMSHRC Page 3122
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA)

v.

C. S. & S. COAL CORPORATION

Docket No. 

A.C. No. 

VA 2010-51

44-07025-179671

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) (“Mine Act”). On September 10, 2013, the Commission received from C.

S. & S. Coal Corporation (“C. S. & S.”) a motion by counsel seeking to reopen a penalty

assessment proceeding and relieve it from the Default Order entered against it. 

On March 16, 2011, the Chief Administrative Law Judge issued an Order to Show Cause

in response to C. S. & S.’s failure to answer the Secretary of Labor’s September 1, 2010 Petition

for Assessment of Civil Penalty. By its terms, the Order to Show Cause became a Default Order

on April 18, 2011, when the operator did not file an answer within 30 days.

C. S. & S. asserts that both the Petition for Assessment of Civil Penalty and the Order to

Show Cause were issued and delivered to an incorrect address. The Secretary of Labor does not

oppose the request. We note that the proposed assessment forms for this case were also mailed

to the same incorrect address, and that the Commission issued an order allowing the case to be

reopened on July 14, 2010. We also note the operator’s argument that, since this case was

reopened, it has been diligent in monitoring the case for receipt of the Petition. The operator

asserts that it contacted the Commission’s docket office to determine the status of the case on

August 22, 2013, which is when it first learned that the Petition and Order to Show Cause were

filed again to the same incorrect address. The motion to reopen at issue was received by the

docket office 19 days later.

The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. 

§ 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s

decision may be sought by filing a petition for discretionary review within 30 days of its

issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not

direct review within 40 days of a decision’s issuance, it becomes a final decision of the

Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final

decision of the Commission.

December 23, 2014

36 FMSHRC Page 3123
In evaluating requests to reopen final orders, the Commission has found guidance in Rule

60(b) of the Federal Rules of Civil Procedure under which the Commission may relieve a party

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

other reason justifying relief. 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”); Jim Walter Res., Inc.,

15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. 

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

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

Secretary’s response, in the interest of justice, we hereby reopen this matter and remand it to the

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

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

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Acting Chairman

/s/ Robert F. Cohen

Robert F. Cohen, Jr., Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 3124
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

December 23, 2014

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA)

v.

SIERRA ROCK & DIRT, INC.

Docket No. 

A.C. No. 

WEST 2014-42-M

24-02115-331596-02

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) (“Mine Act”). On June 3, 2014, the Commission received from Sierra Rock

& Dirt, Inc., (“Sierra”) a motion seeking to reopen a penalty assessment proceeding and relieve it

from the Default Order entered against it. 

On February 25, 2014, the Chief Administrative Law Judge issued an Order to Show

Cause in response to Sierra’s perceived failure to answer the Secretary of Labor’s November 22,

2013 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was

deemed a Default Order on March 28, 2014, when it appeared that the operator had not filed an

answer within 30 days.

Sierra asserts that it had filed a timely answer to the Petition for Assessment of Civil

Penalty. The Secretary does not oppose the request to reopen and notes that this case was split

into two dockets, WEST 2014-41-M and WEST 2014-42-M. The Secretary confirms that the

operator sent a timely answer that included all citations for both dockets, but that the answer was

labeled with only one docket number, WEST 2014-41-M.

36 FMSHRC Page 3125
 Having reviewed Sierra's request and the Secretary's response, we conclude that the 

operator was not in default under the terms of the Order to Show Cause as it filed a timely 

response to the penalty petition. See Eagle Creek Mining, LLC, 35 FMSHRC 781, 782 (Apr.

2013). This renders the Default Order a nullity. Accordingly, the operator’s motion to reopen is

moot, and this case is remanded to the Chief Administrative Law Judge for further proceedings

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

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

36 FMSHRC Page 3126
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

December 23, 2014

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA)

v.

CONSOLIDATION COAL COMPANY

Docket No. 

A.C. No. 

WEVA 2014-786

46-01968-338993

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) (“Mine Act”). On April 8, 2014, the Commission received from

Consolidation Coal Company (“Consolidation”) a motion seeking to reopen a penalty assessment

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

U.S.C. § 815(a).

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of

Civil Procedure, under which the Commission may relieve a party from a final order of the

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying

relief. 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).

Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment was delivered on January 1, 2014, and became

a final order of the Commission on January 31, 2014. Consolidation asserts that the proposed

assessment was not timely contested due to miscommunication resulting from a change in

contest procedures, arising from a change in ownership. The Secretary does not oppose the

36 FMSHRC Page 3127
request to reopen, and urges the operator to take steps to ensure that future penalty contests are

timely filed. 

Having reviewed Consolidation's request and the Secretary's response, in the interest of 

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

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

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

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

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Acting Chairman

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 3128
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

December 23, 2014

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA)

v.

CONSOLIDATION COAL COMPANY

Docket No. 

A.C. No. 

WEVA 2014-1044

46-01968-343269

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners

ORDER

BY: Nakamura, Acting Chairman; Althen, Commissioner 

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

§ 801 et seq. (2012) (“Mine Act”). On June 17, 2014, the Commission received from

Consolidation Coal Company (“Consolidation”) a motion seeking to reopen a penalty assessment

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

U.S.C. § 815(a).

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of

Civil Procedure, under which the Commission may relieve a party from a final order of the

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying

relief. 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).

Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment was delivered on February 19, 2014, and

became a final order of the Commission on March 21, 2014. Consolidation asserts that the

proposed assessment was not timely contested due to miscommunication resulting from a change

in contest procedures, arising from a change in ownership. The Secretary does not oppose the

36 FMSHRC Page 3129
request to reopen, and urges the operator to take steps to ensure that future penalty contests are

timely filed. 

Having reviewed Consolidation's request and the Secretary's response, in the interest of 

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

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

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

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

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Acting Chairman

/s/ William I. Althen

William I. Althen, Commissioner

36 FMSHRC Page 3130
I dissent from my colleagues because I believe that the respondent has not established

good cause to reopen the captioned proceeding. 

The subject motion to reopen concerns a proposed assessment for civil penalties that was

delivered to Blacksville No. 2 Mine more than two months after the mine was acquired by

Murray Energy Company from Consolidation Coal Company. This is the second docket in

which the Commission has received a motion to reopen from the respondent contending that its

failure to file a contest form because of “miscommunications” resulting from the transfer in

ownership of the mine constitutes good cause to reopen final orders. See also Consolidation

Coal Co., 36 FMSHRC _, slip op. at 2, No. WEVA 2014-786.

On December 5, 2013, Murray Energy Company acquired the Blacksville No. 2 mine. 

Mot. at 2. On April 8, 2014, the Commission received the first motion to reopen (in Docket 

No. WEVA 2014-786). In its motion, the respondent alleged that the acquisition of the mine

resulted in the disruption of the practices for filing notices of contest. The respondent claimed

that its failure to file a notice of contest to a proposed assessment received on January 2, 2014

resulted from inadvertence or mistake within the meaning of Rule 60(b)(1). Apparently officials

at the Blacksville No. 2 mine, consistent with past practices under Consolidation Coal,

forwarded the contest form to the Murray Energy corporate offices. However, Murray Energy

officials failed to file the form because Murray Energy’s customary practice is that officials at

the individual mine file the contest form. 

Respondent stated that it discovered the lapse, investigated other outstanding

Consolidation Coal citations, and then implemented new procedures to ensure the timely filing

of notices of contest. Mot. at 3 (Docket No. WEVA 2014-786). Notably, it represented that

“[t]his is the only such incident of this type arising from the re-allocation of responsibilities

associated with the acquisition of Blacksville No. 2 by Murray Energy. Murray Energy and

Blacksville #2 have now implemented procedures to ensure that assessments are timely

contested. ” Id. I concluded that the respondent established good cause to reopen the citations. 

Consolidation Coal Co., 36 FMSHRC _, slip op. at 2, No. WEVA 2014-786.

On June 17, 2014, the Commission received a second motion to reopen, which is the

subject of the captioned proceeding. This motion relates to a proposed assessment received on

February 19, 2014. Again the respondent contends that Murray Energy’s acquisition of the

Blacksville No. 2 Mine resulted in a failure to timely file a contest form, and requests that the

Commission reopen the resulting final orders. The motion fails to account for the respondent’s

past assurances that it investigated its system of processing contest forms and implemented

procedures to ensure the timely submission of contests of proposed assessments. In its first

motion to reopen, the respondent had acknowledged that it was notified of the delinquency by

email on February 24, 2014, and received a delinquency notice from MSHA dated March 18,

2014. Mot. at 3 (Docket No. WEVA 2014-786). Since the proposed assessment in the present

Commissioner Cohen, dissenting:

36 FMSHRC Page 3131
case did not become final until March 21, 2014, the respondent clearly had time to act to prevent

the second delinquency. 

The Commission has made it clear that where a failure to contest a proposed assessment

results from an inadequate or unreliable internal processing system, the operator has not

established grounds for reopening the assessment. Shelter Creek Capital, LLC, 34 FMSHRC

3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011); Double

Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co., 31 FMSHRC

1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle

Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008).

I accepted the respondent’s proffers that the failure to file a contest form in Docket No.

WEVA 2014-786 was the result of mistake or inadvertence, and relied on its representations that

it investigated the incident, discovered that this failure was an isolated incident, and

implemented new procedures. 

However, it is now apparent that the respondent did not investigate with the requisite

level of diligence. If it had performed due diligence it could have discovered the problem in

time to file a timely contest of the proposed assessment in Docket No. WEVA 2014-1044. 

Certainly it could have discovered the problem and filed a prompt motion to reopen. Instead, the

respondent sought reopening more than two months after it failed to discover the problem in its

own internal investigation. 

I find the respondent’s contentions to be insufficient to establish good cause to reopen the

final order.

/s/ Robert F. Cohen Jr.

Robert F. Cohen Jr., Commissioner

36 FMSHRC Page 3132
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

December 30, 2014

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA)

v.

AUSTIN POWDER COMPANY

Docket No. 

A.C. No. 

KENT 2013-1078

15-19199-325351-E24

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, Commissioners

ORDER

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

§ 801 et seq. (2012) (“Mine Act”). On September 25, 2013, the Commission received from

Austin Powder Company (“Austin”) a motion seeking to reopen a penalty assessment that had

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

§ 815(a).

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of

Civil Procedure under which the Commission may relieve a party from a final order of the

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying

relief. 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).

Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment was delivered on June 27, 2013, and became a

final order of the Commission on July 29, 2013. Austin asserts that its safety specialist

mistakenly waited for further instructions from her supervisors and didn’t forward the

assessment to counsel. Austin has modified its handling procedures to avoid future errors. The

Secretary does not oppose the request to reopen and urges the operator to take steps to ensure

that future penalty contests are timely filed. 

36 FMSHRC Page 3133
Having reviewed Austin's request and the Secretary's response, in the interest of justice, 

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

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

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

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

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman

/s/ William I. Althen

William I. Althen, Commissioner

36 FMSHRC Page 3134
Commissioner Cohen, dissenting

I dissent from my colleagues’ decision because I believe that Austin Powder has not

established good cause to reopen the subject civil penalty case.

As grounds to reopen the proceeding, Austin Powder states that a safety and compliance

specialist did not forward the proposed assessment to its counsel for contest because she was

awaiting direction from three Austin Powder management officials on whether to do so. Mot. at

1-2. The operator produced an affidavit from the safety specialist who surmised that each of the

managers “assumed” that she had forwarded the assessment to counsel, when, in fact, she was

waiting for their instructions. Mot. at Ex. 1, par. 6. Austin Powder did not provide affidavits or

other evidence from the three management officials who did the assuming, and so the safety

specialist’s affidavit, at best, is based on hearsay.

Austin Powder has an extensive history of filing motions to reopen. Its September 2013

motion was the sixth motion it has filed since 2006. See Austin Powder Co., 34 FMSHRC 2346

(Sept. 2012) (covering two motions); 34 FMSHRC 1285 (June 2012); 28 FMSHRC 424 (July

2006); 28 FMSHRC 430 (July 2006). In its most recent prior motions to reopen, Austin Powder

moved the Commission to reopen two dockets under circumstances remarkably similar to the

present case. In both of those cases the managers failed to instruct the safety specialist to

forward the proposed assessments to its counsel. In granting the motions, the Commission noted

that “[t]he operator further states that in the future its safety specialist will forward to counsel all

proposed penalty assessments which the safety director intends to contest.” 34 FMSHRC at

2347. 

The Commission has made it clear that where a failure to contest a proposed assessment

results from an inadequate or unreliable internal processing system, the operator has not

established grounds for reopening the assessment. Shelter Creek Capital, LLC, 34 FMSHRC

3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011); Double

Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co., 31 FMSHRC

1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle

Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008). In examining the operator’s asserted

justifications for reopening a particular case, the Commission has also explored whether the

operator has demonstrated a pattern of behaviors that are attributable to inadequate or unreliable

internal processing systems in other cases. See Oak Grove Res., LLC, 33 FMSHRC 2378, 2379-

80 (Oct. 2011). In the Pinnacle cases, we emphasized that “[r]elief under Rule 60(b) should

generally not be accorded to an operator who creates and condones a system which predictably

will result in missed deadlines.” 30 FMSHRC at 1062; 30 FMSHRC at 1067. 

I find Austin Powder’s claim of inadvertence or mistake to be insufficient, and that the

operator has not established good cause to reopen the proceeding. The failure to file the contest

in this case occurred only 10 months after the Commission reopened two other defaults for

Austin Powder which were similarly caused by the failure of the three management officials to

give direction to the safety specialist. Austin Powder did not make good on its promise to

reform its system for contesting proposed assessments, and is asking us to reopen this case based

36 FMSHRC Page 3135
on the same breakdown in communication that had recently occurred. I conclude that based on

Austin Powder’s own submissions, it has condoned an unreliable internal processing system and

placed responsibility for its contest process on a lower-level employee rather than on its

management officials. Austin Powder is a large operator which should have the resources to

ensure that proposed assessments are timely contested. It has consistently failed to do so.

Therefore, I would deny its motion to reopen. 

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

36 FMSHRC Page 3136
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

December 30, 2014

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA)

v.

80TH STREET AGGREGATES

Docket No. 

A.C. No. 

LAKE 2013-82-M

21-03672-302353

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) (“Mine Act”). On July 31, 2013, the Commission received from 80th Street

Aggregates (“Aggregates”) a motion seeking to reopen a penalty assessment proceeding and

relieve it from the Default Order entered against it. 

On February 6, 2013, the Chief Administrative Law Judge issued an Order to Show

Cause in response to Aggregates’ failure to answer the Secretary of Labor’s November 26, 2012

Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause became a

Default Order on March 11, 2013, when the operator did not appear to have filed an answer

within 30 days.

Aggregates asserts that it filed a timely answer in response to the Order to Show Cause

with the Commission on February 25, 2013, as well as with MSHA on July 13, 2013. 

Aggregates supplies copies of two delivery confirmation receipts to support its claims, as well as

a copy of its undated letter. The Secretary does not oppose the request to reopen and notes that

although Aggregates did file an answer with MSHA, it incorrectly sent the answer to MSHA’s

St. Louis payment processing address and not to MSHA’s Duluth District Office, as required.

The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. 

§ 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s

decision may be sought by filing a petition for discretionary review within 30 days of its

issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not

direct review within 40 days of a decision’s issuance, it becomes a final decision of the

Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final

decision of the Commission.

In evaluating requests to reopen final orders, the Commission has found guidance in Rule

60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled

to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable

36 FMSHRC Page 3137
neglect. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as

practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 15 FMSHRC 782,

786-89 (May 1993). 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 will be permitted. See Coal Prep. Servs.,

Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

Having reviewed Aggregates’ request and the Secretary’s response, in the interest of

justice, we hereby reopen the proceeding and vacate the Default Order. Acordingly, this case is 

remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine 

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

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman

/s/ Robert F. Cohen

Robert F. Cohen, Jr., Commissioner

/s/ William I Althen 

William I. Althen, Commissioner

36 FMSHRC Page 3138
 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

December 30, 2014

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA)

v.

LAKEVIEW REDI-MIX COMPANY

Docket No. 

A.C. No. 

WEST 2010-314-M

35-03398-203430

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) (“Mine Act”). On November 5, 2013, the Commission received from

Lakeview Redi-Mix Company, (“Lakeview”) a motion seeking to reopen a penalty assessment

proceeding and relieve it from the Default Order entered against it. 

On March 18, 2011, the Chief Administrative Law Judge issued an Order to Show Cause

in response to Lakeview’s perceived failure to answer the Secretary of Labor’s January 15, 2010

Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a

Default Order on April 18, 2011, when it appeared that the operator had not filed an answer

within 30 days.

Lakeview asserts that it had filed a timely answer to the Petition for Assessment of Civil

Penalty. The Secretary does not oppose the request to reopen and confirms that Lakeview sent

its answer on March 31, 2011.

36 FMSHRC Page 3139
Having reviewed Lakeview's request and the Secretary's response, we conclude that the 

operator was not in default under the terms of the Order to Show Cause as it filed a timely 

response to the penalty petition. See Eagle Creek Mining, LLC, 35 FMSHRC 781, 782 (Apr. 

2013). This renders the Default Order a nullity. Accordingly, the operator’s motion to reopen 

is moot, and this case is remanded to the Chief Administrative Law Judge for further

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

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Acting Chairman

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

36 FMSHRC Page 3140
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

December 30, 2014

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA)

v.

HARRY C. CROOKER & SONS, INC. 

Docket No. 

A.C. No. 

YORK 2012-123-M

17-00576-282499

BEFORE: Nakamura, Acting Chairman; Cohen and Althen, 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. (2012) (“Mine Act”). On July 31, 2013, the Commission received from Harry C.

Crooker & Sons, Inc., (“Crooker”) a revised motion seeking to reopen a penalty assessment

proceeding and relieve it from the Default Order entered against it. 

On August 23, 2012, the Chief Administrative Law Judge issued an Order to Show Cause

in response to Crooker’s failure to answer the Secretary of Labor’s April 2, 2012 Petition for

Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default

Order on September 24, 2012, when it appeared that the operator had not filed an answer within

30 days.

Crooker asserts that it had sent a timely answer to the Order to Show Cause to the

Department of Labor and the Commission. The Secretary does not oppose the request to reopen

and confirms that Crooker sent its answer on September 12, 2012.

36 FMSHRC Page 3141
 Having reviewed Crooker's request and the Secretary's response, we conclude that the 

operator was not in default under the terms of the Order to Show Cause as it timely complied 

with the Order. See Vulcan Construction Materials, 33 FMSHRC 2164 (Sept. 2011). This

renders the Default Order a nullity. Accordingly, the operator’s motion to reopen is moot, and 

this case is remanded to the Chief Administrative Law Judge for further proceedings pursuant to

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

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ William I. Althen

William I. Althen, Commissioner

36 FMSHRC Page 3142
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2536 

303-844-3577/FAX 303-844-5268 

February 26, 2014 

DECISION

Appearances: Jamison P. Milford, Esq., Office of the Solicitor, US Department of Labor, 

Kansas City, Missouri and Robert D. Ankeney, Mine Safety and Health 

Administration, US Department of Labor, Denver, Colorado, for Petitioner 

Paul M. Nelson, Nelson Quarries, Inc., Jasper, Missouri, for Respondent 

Before: Judge Richard W. Manning 

These cases are before me upon 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 “Act” or “Mine Act”). The parties 

introduced testimony and documentary evidence at a hearing held in Kansas City, Missouri. 

A total of 11 section 104(a) citations were adjudicated at the hearing. One section 104(a) 

citation was settled immediately before the hearing. The Secretary proposed a total penalty of 

$1,705.00 for these matters. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

NELSON QUARRIES INC., 

 Respondent 

 CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 2011-0878-M 

A.C. No. 14-01478-254923 

Plant 2 

Docket No. CENT 2011-0712-M 

A.C. No. 14-01277-251773 

Docket No. CENT 2011-1158-M 

A.C. No. 14-01277-263558 

Plant 3 

Docket No. CENT 2011-0879-M 

A.C. No. 14-01597-254924 

Plant 4 

36 FMSHRC Page 3143
I. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

A. Docket No. CENT 2011-878-M, Plant 2

Citation No. 6593717

On April 7, 2011, MSHA Inspector Leon Mueller issued Citation No. 6593717 under 

section 104(a) of the Mine Act, alleging a violation of section 56.1000. The inspector later 

modified Citation No. 6593717 to allege a violation of section 56.14201(b). (Ex. G-9; Tr. 22). 

An equipment operator could not see the entirety of the plant conveyors, but activated the 

conveyors without providing a visual or audible warning. Id. Inspector Mueller determined that 

an injury was reasonably likely to occur and that such an injury could reasonably be expected to 

be permanently disabling. Further, he determined that the violation was Significant and 

Substantial (“S&S”), the operator’s negligence was moderate, and that one person would be 

affected. Section 56.14201(b) of the Secretary’s safety standards requires that “[w]hen the entire 

length of the conveyor is not visible from the starting switch, a system which provides visible or 

audible warning shall be installed and operated to warn persons that the conveyor will be 

started.” 30 C.F.R. § 56.14201(b). The Secretary proposed a penalty of $127.00 for this citation. 

For the reasons set forth below, I modify Citation No. 6593717 to non-S&S. 

Discussion and Analysis

I find that Respondent violated section 56.14201(b) because Respondent failed to operate 

a warning system before activating the conveyor system. Section 56.14201(b) requires the 

installation and operation of a warning system for conveyors unless the operator can see the 

entire conveyor. Patrick Clift, a Nelson Quarries superintendent who oversaw Plant 2, testified 

that the miner who started the conveyor ensured that he could see all the miners before he started 

the conveyor system. (Tr. 54-55). This miner tried to activate the alarm before he started the 

system and, because the alarm was not working, he did not start the conveyor system until he 

was able to see all the miners at the plant. Being able to see every miner that was present at a 

mine, however, does not comply with the requirements of the safety standard. I credit the 

inspector’s testimony, as well as Clift’s, that the conveyor was running, the entirety of the 

conveyor system was not visible from the control shack, and the alarm did not function. (Tr. 24-

25, 53-55). Respondent therefore violated section 56.14201(b). 

I find that Citation No. 6593717 was not S&S;1

 it is unlikely that the cited condition 

would contribute to an injury. An S&S determination must be based upon the particular facts 

1

 An S&S violation is a violation “of such nature as could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d) 

(2006). A violation is properly designated S&S “if, based upon the particular facts surrounding 

that violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 

822, 825 (Apr. 1981). In order to establish the S&S nature of a violation, the Secretary must 

(continued...) 

36 FMSHRC Page 3144
surrounding the violation and must be made in the context of continued normal mining 

operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., 

Inc., 6 FMSHRC 1573, 1574 (July 1984)). The cited conveyor had a warning system that had 

worked properly on the previous day, but it was not working on April 7, 2011. (Tr. 24). The 

system operated the day before the inspection. (Tr. 54). Clift testified that Respondent had 

already called a mechanic to repair the warning system at the time of the inspection and repairs 

were made the day of the inspection. (Tr. 54). Assuming continued normal mining operations, I 

find, based upon the testimony of Clift, it was unlikely that the violation would contribute to an 

injury before the condition was repaired. The cited conveyor, furthermore, is usually started only 

once each day. (Tr. 25, 55). Moreover, I credit Clift’s testimony that the operator of the 

conveyor could not see the entire conveyor, but could see every miner. (Tr. 54-55). I find it is 

unlikely that the cited condition would contribute to an injury and Citation No. 6593717 is 

therefore not S&S. 

I find that Respondent’s moderate negligence caused Citation No. 6593717. Although 

the miner had actual knowledge of the cited condition, he took affirmative steps to make sure 

that no miners were close to the conveyor before he started it. Nevertheless, the repair of the 

warning system only required reconnecting a wire, which could have been done before operating 

the conveyor. (Tr. 64). The leadman discussed activating the conveyor with the miner who 

operated the conveyor before that miner did so. (Tr. 54-55). A penalty of $120.00 is appropriate 

for Citation No 6593717. I hereby MODIFY Citation No. 6593717 to non-S&S. 

Citation No. 6593718

On April 7, 2011, Inspector Mueller issued Citation No. 6593718 under section 104(a) of 

the Mine Act, alleging a violation of section 56.14107(a) of the Secretary’s safety standards. 

(Ex. G-12). The citation states that the underside of the tail pulley under the first screen, which 

was 30 inches above the ground and 42 inches wide, was unguarded. Id. Inspector Mueller 

determined that an injury was reasonably likely to occur and that such an injury could reasonably 

be expected to be permanently disabling. Further, he determined that the violation was S&S, the 

operator’s negligence was moderate, and that one person would be affected. Section 56.14107(a) 

of the Secretary’s safety standards requires that “[m]oving machine parts shall be guarded to 

protect persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, 

flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury.” 30 

C.F.R. § 56.14107(a). The Secretary proposed a penalty of $127.00 for this citation. 

For the reasons set forth below, I modify Citation No. 6593718 to be non-S&S and low 

negligence. 

1

 (...continued) 

prove: “(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard – 

that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood 

that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the 

injury will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); 

accord Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 

F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). 

36 FMSHRC Page 3145
Discussion and Analysis

 I find that Respondent violated section 56.14107(a) because the underside of the cited tail 

pulley was not guarded to prevent contact. The Commission has held that a violation of a 

guarding standard requires a “reasonable possibility of contact and injury” that includes “contact 

stemming from inadvertent stumbling or falling, momentary inattention, or ordinary human 

carelessness.” Thompson Brothers Coal Company, Inc., 6 FMSHRC 2094, 2097 (Sept. 1984). 

To determine whether a reasonable possibility exists, the Commission stated that all “relevant 

exposure and injury variables, e.g., accessibility of the machine parts, work areas, ingress and 

egress, work duties, and as noted, the vagaries of human conduct” must be considered. Id. Both 

Inspector Mueller and Clift testified that the underside of the cited tail pulley, which was 30 

inches above the ground, was unguarded. (Tr. 36, 56-57). Work duties, such as greasing, 

required miners to work in the area. (Tr. 66). Without a guard, nothing existed to prevent the 

hand, foot, or clothing of a miner from contacting the tail pulley. The tail pulley was not so low 

to the ground that it was impossible for a miner’s appendage to contact the pulley. It was 

possible for a miner to contact the tail pulley. 

 I find that Citation No. 6593718 was not S&S because the Secretary did not fulfill his 

burden to show that contact with the cited pulley was reasonably likely to occur.2

 The tail pulley 

presented the hazard of entanglement, which could cause permanently disabling injuries. The 

inspector testified that miners would be in the area of the cited pulley to clean, maintain, grease, 

or repair the equipment. (Tr. 37). He also acknowledged that the company policy required that 

the conveyor be locked and tagged out for these activities. (Tr. 41). Inspector Mueller worried 

that a miner in the area during operation may ignore company policy and perform maintenance 

or clean the area, although he acknowledged that no miners would likely be in the area while the 

conveyor operated. (Tr. 38-39, 48). The miners operate mobile equipment during their shift 

except for the crusher operator. Even if a miner performed maintenance or cleaning without 

locking out the conveyor, the inspector did not explain how a miner would be likely to contact 

the pulley. The pulley was surrounded by flat ground, guarded on its other sides, and close to the 

ground, which made it unlikely that a miner would contact it due to tripping or falling. (Tr. 65, 

Ex. G-14). Miners cleaning accumulations under the pulley would not reach under using their 

hands or shovels because they used a skid steer to clean, not hand tools. (Tr. 65, 38). According 

to Clift, access to grease the conveyor was from the top of the pulley, not the unguarded bottom 

and was performed when the plant was locked and tagged out. (Tr. 66). The Secretary failed to 

show that a miner would be reasonably likely to contact the unguarded underside of the cited tail 

pulley. 

I find Respondent’s low negligence caused Citation No. 6593718. Although the 

drawings from MSHA’s guarding guidelines do not alleviate Respondent’s responsibility to 

properly guard its pulleys, the drawings are misleading. (Exs. R-1, 2). It is unclear at what 

distance from the ground the underside of a pulley must be guarded and the drawings reasonably 

suggest that the cited pulley was not a violation. The pulley, moreover, was not previously cited 

despite numerous inspections, making the guideline drawings seem more likely to suggest that 

 2

 The Secretary bears the burden of proving that a violation is S&S.” Peabody Coal Co., 

17 FMSHRC 26, 28 (Jan. 1995). 

36 FMSHRC Page 3146
the cited pulley did not require a guard because it was low to the ground. (Tr. 56-57). I find that 

Respondent reasonably believed that the cited pulley was too low to require a guard and 

therefore its negligence was low. A penalty of $100.00 is appropriate for Citation No 6593718. 

I hereby MODIFY Citation No. 6593718 as discussed above. 

B. Docket No. CENT 2011-712-M, Plant 3

Citation No. 6593690

On March 2, 2011, Inspector Mueller issued Citation No. 6593690 under section 104(a) 

of the Mine Act, alleging a violation of section 56.14100(b) of the Secretary’s safety standards. 

(Ex. G-16). The citation states that the emergency steering device on the Cat 769c haul truck, 

which operated close to other equipment at the time of the inspection, did not function when 

tested. Id. Inspector Mueller determined that an injury was reasonably likely to occur and that 

such an injury could reasonably be expected to be fatal. Further, he determined that the violation 

was S&S, the operator’s negligence was moderate, and that one person would be affected. 

Section 56.14100(b) of the Secretary’s safety standards requires that “[d]efects 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.” 30 C.F.R. § 56.14100(b). The Secretary proposed a 

penalty of $285.00 for this citation. 

For the reasons set forth below, I vacate Citation No. 6593690. 

Discussion and Analysis

 I find that Respondent did not violate section 56.14100(b) because the Secretary did not 

fulfill his burden to show that the cited condition was not corrected in a timely manner.3 The 

parties agree that the emergency steering of the cited equipment was not operational. Although 

Respondent operated the equipment with the cited condition, I credit the testimony of Ted 

Brown, the operator of the truck at the time of inspection, that he performed a preshift 

examination of the equipment before using it and the emergency steering was operational. (Tr. 

111). Brown was a new miner and the day that the inspector cited this piece of equipment was 

the first day Brown ever operated it. Brown testified that because he was new to this haul truck, 

he thoroughly performed a preshift examination. Id. Although the cited condition existed during 

the operation of the cited equipment, I find that it did not exist during the preshift examination. 

Respondent, therefore, had no warning of the short lived condition and the Secretary did not 

show that the condition was not corrected in a timely manner. Citation No. 6593690 is hereby 

VACATED. 

Citation No. 6593692

On March 2, 2011, Inspector Mueller issued Citation No. 6593692 under section 104(a) 

of the Mine Act, alleging a violation of section 56.14107(a) of the Secretary’s safety standards. 

 3

 The Secretary is required to show the existence of a violation by a preponderance of the 

evidence. RAG Cumberland Resources Co., 22 FMSHRC 1066, 1070 (Sept. 2000). 

36 FMSHRC Page 3147
(Ex. G-23). The citation states that the underside of the tail pulley of belt #544 was 40 inches 

above the ground and not guarded. Id. Inspector Mueller determined that an injury was 

reasonably likely to occur and that such an injury could reasonably be expected to be 

permanently disabling. Further, he determined that the violation was S&S, the operator’s 

negligence was moderate, and that one person would be affected. The Secretary proposed a 

penalty of $127.00 for this citation. 

For the reasons set forth below, I vacate Citation No. 6593692. 

Discussion and Analysis

 I find that Respondent did not violate section 56.14107(a). I find that the cited pulley did 

not operate without the presence of a guard and therefore no moving machine parts were 

unguarded. The inspector testified that according to the pre inspection meeting, the only guards 

that were missing and required repairs were on the “screen deck area.” (Tr. 90). Michael Peres, 

the superintendent of Plant 3, testified that there were no screen decks at the plant that required 

guarding. (Tr. 122). Furthermore, he testified that the plant did not run with the cited guard 

missing; the plant was shut down because the guard was damaged by a broken belt. (Tr. 120-

21). The inspector found the guard that was originally attached to the cited pulley upon the 

ground nearby. (Tr. 89-90). Peres had placed a work order to repair the guard and the plant 

would not run until the repairs were completed. (Tr. 121). The miner who referenced the guards 

on the screen deck most likely referred to the cited guard. I credit the testimony of Peres that the 

plant did not run without the cited guard in place and that the plant was shut down specifically to 

repair that guard. Citation No. 6593692 is hereby VACATED. 

Citation No. 6593693

On March 2, 2011, Inspector Mueller issued Citation No. 6593693 under section 104(a) 

of the Mine Act, alleging a violation of section 47.44(b) of the Secretary’s safety standards. (Ex. 

G-27). The citation states that the “operator failed to label a 2 1/2 gallon temporary, portable 

container with at least the common name of its contents.” Id. Inspector Mueller determined that 

an injury was unlikely to occur, but that such an injury could reasonably be expected to result in 

lost workdays or restricted duty. Further, he determined that the operator’s negligence was 

moderate and that one person would be affected. Section 47.44(a) of the Secretary’s safety 

standards mandates that portable containers do not require a label if the miner using the container 

“(1) [k]nows the identity of the chemical, its hazards, and any protective measures needed, and 

(2) [l]eaves the container empty at the end of the shift.” 30 C.F.R. § 47.44(a). Section 47.44(b) 

provides that if the requirements of section 47.44(a) are not met, “the operator must mark the 

temporary, portable container with at least the common name of its contents.” 30 C.F.R. § 

47.44(b). The Secretary proposed a penalty of $100.00 for this citation. 

For the reasons set forth below, I affirm Citation No. 6593693. 

 

36 FMSHRC Page 3148
Discussion and Analysis

I find that Respondent violated section 47.44(b). Section 47.44 requires that either 

temporary, portable containers have labels stating the common name of the contents or that two 

conditions are satisfied: (1) a miner knows the contents of the container and (2) empties the 

container at the end of the shift. 30 C.F.R. § 47.44. I credit Inspector Mueller’s testimony that 

the miner present during his inspection could not identify the contents of the cited container until 

he removed the lid and examined the contents. (Tr. 92). The miner opened the unlabeled 

container to identify its contents because he did not know what the container held. The cited 

container also did not have a label, which is a violation of section 47.44(b). (Tr. 91; Ex. G-29). I 

AFFIRM Citation No. 6593693; a penalty of $120.00 is appropriate. 

C. Docket No. CENT 2011-1158-M, Plant 3

Citation No. 6593767

On June 23, 2011, Inspector Mueller issued Citation No. 6593767 under section 104(a) of 

the Mine Act, alleging a violation of section 56.14100(b) of the Secretary’s safety standards. 

(Ex. G-30). The citation states that the hook of the Grove RT500D XL had a spring loaded gate 

closure that did not function. Id. The clevis and chain attached to the crane were attached to a 

Volvo loader. Id. Drive train parts and plywood under the loader showed that the operator 

performed work upon the loader. Id. Inspector Mueller determined that an injury was 

reasonably likely to occur and that such an injury could reasonably be expected to be 

permanently disabling. Further, he determined that the violation was S&S, the operator’s 

negligence was moderate, and that one person would be affected. The Secretary proposed a 

penalty of $127.00 for this citation. 

For the reasons set forth below, I affirm Citation No. 6593767. 

Discussion and Analysis

 I find that the defective gate closure of the cited equipment affected safety; Respondent 

violated section 56.14100(b). The cited crane was attached to a chain, which was attached to the 

back of a loader with a hook. The spring loaded latch of the hook, which was designed to 

prevent a load from detaching and dropping off of the hook, was not closed. (Tr. 139; Ex. G-33). 

The crane was connected to the loader to lift the back of the loader off of the ground to work 

upon the loader. (Tr. 138-40). The latch should be closed to prevent the crane from releasing 

and dropping its load. (Tr. 139; Ex. G-36). If the loader detached and dropped from the crane 

the loader could strike a miner. Peres stated that the crane did not operate in the cited condition 

and the latch needed to be tapped to close. (Tr. 178-80). He also testified that the crew would 

return to close the latch and left it open because they were called to work upon another piece of 

equipment. (Tr. 176). Respondent should have closed the latch before leaving the crane 

unattended because the unclosed latch affected safety by creating a crushing hazard for miners 

because it could contribute to a load dropping from the crane. The condition cited in Citation 

No. 6593767 violated section 56.14100(b). 

36 FMSHRC Page 3149
 I find that Citation No. 6593767 was S&S because the cited condition was reasonably 

likely to lead to a serious injury. The unclosed latch created a crushing hazard. Although the 

crane did not hoist the loader, work had begun upon the loader. (Tr. 179). Even if Respondent’s 

work crew planned to return to close the latch, a miner could hoist the loader assuming that that 

the latch was closed before the crew returned, or the crew may forget to close the latch when it 

returned. The crane, furthermore, was ready to operate in every way except the closing of the 

latch, which only required a tap with a hammer; this suggests that the crew was not called away 

from the crane in the middle of their work, but rather deemed their work to be finished. If the 

crane hoisted the loader while the latch remained open, it could cause the crane to drop the 

loader; because miners had already begun working below the loader and left materials behind to 

continue to do so, it is reasonably likely that a miner would be injured as a result of this 

condition. 

I find that Respondent’s moderate negligence caused Citation No. 6593767 because 

Respondent should have known of the cited condition. The cited condition also presented a 

serious hazard. I hereby AFFIRM Citation No. 6593767; a penalty of $200.00 is appropriate. 

Citation No. 6593769

On June 23, 2011, Inspector Mueller issued Citation No. 6593769 under section 104(a) of 

the Mine Act, alleging a violation of section 56.20003(a) of the Secretary’s safety standards. 

(Ex. G-39). The citation states that parts, oil, grease, and trash covered the floor of the back of a 

Ford F800 maintenance truck and a miner was in the back of the truck during the inspection. Id. 

Inspector Mueller determined that an injury was reasonably likely to occur and that such an 

injury could reasonably be expected to be permanently disabling. Further, he determined that the 

violation was S&S, the operator’s negligence was moderate, and that one person would be 

affected. Section 56.20003(a) of the Secretary’s safety standards requires that “[w]orkplaces, 

passageways, storerooms, and service rooms shall be kept clean and orderly.” 30 C.F.R. § 

56.20003(a). The Secretary proposed a penalty of $127.00 for this citation. 

For the reasons set forth below, I reduce the gravity of Citation No. 6593769. 

Discussion and Analysis

 I find that Respondent violated section 56.20003(a) by failing to keep a workplace clean 

and orderly. I credit Inspector Mueller’s testimony that he saw a miner standing in the back of 

the truck and the floor of the truck was covered with parts, oil, grease, and trash. (Tr. 147; Exs. 

G-41, 42). The cited area was a workplace based upon the fact that Mueller witnessed a miner 

standing in it. (Tr. 147). Peres, furthermore, testified that miners had to get into the back of the 

truck in order to access and unload the parts that it carried. (Tr. 186). The cited workplace was 

neither clean nor orderly, which violated section 56.20003(a). 

 I find that Citation No. 6593769 was S&S because the cited condition was reasonably 

likely to lead to a serious injury. The abundance of debris in the back of the cited truck created 

tripping and slipping hazards that could cause injuries including sprains and broken bones. The 

inspector witnessed a miner working to unload the back of the truck in the cited area. According 

36 FMSHRC Page 3150
to Peres, this was standard operating procedure. (Tr. 186). The amount of debris provided 

ample opportunities to trip a miner. The miner, furthermore, would be more likely to trip 

because he was climbing in and out of the truck while carrying equipment. Two large pieces of 

equipment that the miner had to unload, a compressor and a jack, were furthest from the miner’s 

point of entry and required the miner to get through all the debris to access and unload them. 

(Tr. 148-49). As a result of the disorderly workplace cited in Citation No. 6593769, a miner was 

reasonably likely to sustain a serious injury due to tripping and falling. I reduce the gravity 

because the evidence establishes that the violation was more likely to contribute to an injury 

resulting in lost workdays or restricted duty as opposed to a permanently disabling injury. 

Respondent’s moderate negligence caused Citation No. 6593769 because Respondent 

should have known of the cited condition. The condition was obvious. I hereby MODIFY

Citation No. 6593769; a penalty of $130.00 is appropriate. 

Citation No. 6593770

On June 23, 2011, Inspector Mueller issued Citation No. 6593770 under section 104(a) of 

the Mine Act, alleging a violation of section 56.14107(a) of the Secretary’s safety standards. 

(Ex. G-43). The citation states that the tail pulley of belt #543, which was 55 inches above the 

ground and 45 inches wide, had an insufficient guard. Id. Inspector Mueller determined that an 

injury was reasonably likely to occur and that such an injury could reasonably be expected to be 

fatal. Further, he determined that the violation was S&S, the operator’s negligence was 

moderate, and that one person would be affected. The Secretary proposed a penalty of $285.00 

for this citation. 

For the reasons set forth below, I modify Citation No. 6593770 to be non-S&S. 

Discussion and Analysis

 I find that Respondent violated section 56.14107(a) because the cited tail pulley was not 

adequately guarded to protect miners from contact with the pulley. I credit the inspector’s 

testimony that the guard nearly touched the pulley and a miner touching the guard might touch 

the pulley itself. (Tr. 158, 174). The guard was close enough to the pulley that it would not 

actually prevent miners from contacting the pulley, making it reasonably possible that a miner 

could contact the pulley and sustain an injury. 

 I find that the Secretary did not fulfill his burden to show that Citation No. 6593770 was 

S&S. Although it is possible for a miner to contact the pulley and sustain a serious injury, the 

Secretary provided little evidence to show that it was reasonably likely. By policy, the operator 

locked and tagged out the cited area before service. (Tr. 188). No miners worked in the cited 

area. (Tr. 170). Although the Secretary explained how a miner could contact a pulley, he did not 

provide evidence to show that miners worked in the area or were likely to contact the pulley. 

 I find that Respondent’s moderate negligence caused Citation No. 6593770 because 

Respondent had reason to know of the cited condition. I credit the inspector’s testimony that 

36 FMSHRC Page 3151
preshift examinations should have identified and corrected the condition. (Tr. 156). A penalty 

of $230.00 is appropriate for Citation No 6593770. I hereby MODIFY Citation No. 6593770. 

D. Docket No. CENT 2011-879-M, Plant 4

Citation Nos. 6593706 and 6593707

On March 23, 2011, Inspector Mueller issued Citation No. 6593706 under section 104(a) 

of the Mine Act, alleging a violation of section 56.12002 of the Secretary’s safety standards. 

(Ex. G-50). The citation states that the switch box in the MCC trailer had three .5 inch diameter 

holes in the bottom that could allow dirt, moisture, insects, and rodents to enter the box and 

damage the wires. Id. Inspector Mueller determined that an injury was unlikely to occur and 

that such an injury could reasonably be expected to cause lost workdays or restricted duty. 

Further, he determined that the operator’s negligence was moderate and that one person would 

be affected. Section 56.12002 of the Secretary’s safety standards requires that “[e]lectric 

equipment and circuits shall be provided with switches or other controls. Such switches or 

controls shall be of approved design and construction and shall be properly installed.” 30 C.F.R. 

§ 56.12002. The Secretary proposed a penalty of $100.00 for this citation. 

Also on March 23, 2011, Inspector Mueller issued Citation No. 6593707 under section 

104(a) of the Mine Act, alleging a violation of section 56.12008 of the Secretary’s safety 

standards. (Ex. G-54). The citation states that a 480 volt power cable did not have proper 

fittings where it entered the control box in the MCC, exposing 2 inches of inner conductors. Id. 

Inspector Mueller determined that an injury was unlikely to occur, but that such an injury could 

reasonably be expected to be fatal. Further, he determined that the operator’s negligence was 

moderate and that one person would be affected. Section 56.12008 of the Secretary’s safety 

standards requires that “[p]ower wires and cables shall be insulated adequately where they pass 

into or out of electrical compartments. Cables shall enter metal frames of motors, splice boxes, 

and electrical compartments only through proper fittings.” 30 C.F.R. § 56.12008. The Secretary 

proposed a penalty of $100.00 for this citation. 

For the reasons set forth below, I affirm Citation Nos. 6593706 and 6593707. 

Discussion and Analysis

 I find that Respondent violated sections 56.12002 and 56.12008. For jurisdictional 

purposes, the Mine Act includes the language “used in or to be used in, the milling of such 

minerals, or the work of preparing coal or other minerals” in its definition of a mine. 30 U.S.C. § 

802(h)(1). The definition of “mine” in the Mine Act, furthermore, “[shall] be given the broadest 

possibl[e] interpretation, and ... doubts [shall] be resolved in favor of ... coverage of the Act.” 

Shamokin Filler Company, Inc., 34 FMSHRC 1897, 1902 (Aug. 2012) (citing S. Rep. No. 95-

181, at 14 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative 

History of the Federal Mine Safety and Health Act of 1977 at 602 (1978)). Clift testified that the 

plant where the conditions in Citation Nos. 6593706 and 6593707 were cited had not operated 

for three to four months, was not energized, did not have a work crew, and did not have the 

necessary components to operate because Respondent moved a large portion of the plant to 

36 FMSHRC Page 3152
another site. (Tr. 217-18, 225-27). The plant remained open because a wash plant, which was 

several hundred yards away from the cited conditions and utilized a different power source, was 

operated by one miner to produce a washed sand material. (Tr. 226-27). Although the crusher at 

Plant 4 was idled at the time of the inspection, Respondent retained a mine ID number and did 

not officially close the plant. (Tr. 226-27). The wash plant was involved in the work of 

preparing minerals. The mine was not closed and the wash plant remained active, which gives 

MSHA the ability to inspect and cite Plant 4, including the crusher. 

 Respondent did not dispute any of the factual representations made by the inspector at 

hearing or in the citations themselves. Furthermore, it was clear that the generator was not 

running and had not done so for a substantial period of time; it was unclear, however, whether 

the generator was locked and tagged out. I credit Inspector Mueller’s testimony that the cited 

switch box had three .5 inch holes in the bottom of the cited electrical box in violation of section 

56.12008. (Tr. 192). I also credit Inspector Mueller’s testimony that the exposed energy 

conductors cited in Citation No. 6593707 violated section 56.12008. (Tr. 197-98). Respondent 

did not present sufficient evidence to overcome Inspector Mueller’s undisputed testimony 

concerning the cited condition; showing that the generator that powered the cited equipment was 

locked and tagged out was vital, but Respondent did not do so. Respondent violated sections 

56.12002 and 56.12008. 

Respondent’s moderate negligence caused Citation Nos. 6593706 and 6593707 because 

Respondent knew or should have known about the cited conditions. Respondent’s foreman 

contacted MSHA to shut the plant down and MSHA denied permission. (Tr. 226-227). I 

AFFIRM Citation Nos. 6593706 and 6593707; a penalty of $125.00 is appropriate for each 

citation. 

Citation No. 6593708

On March 23, 2011, Inspector Mueller issued Citation No. 6593708 under section 104(a) 

of the Mine Act, alleging a violation of section 56.13011 of the Secretary’s safety standards. 

(Ex. G-50). The Kohler air compressor tank was equipped with a functioning automatic pressure 

release valve, but did not have a pressure gauge. Id. Inspector Mueller determined that an injury 

was unlikely to occur, but that such an injury could reasonably be expected to cause lost 

workdays or restricted duty. Further, he determined that the operator’s negligence was moderate 

and that one person would be affected. Section 56.13011 of the Secretary’s safety standards 

requires that air receiver tanks “shall be equipped with indicating pressure gauges which 

accurately measure the pressure within the air receiver tanks.” 30 C.F.R. § 56.13011. The 

Secretary proposed a penalty of $100.00 for this citation. 

For the reasons set forth below, I modify Citation No. 6593708 to a low negligence 

designation. 

Discussion and Analysis

 I find that Respondent violated section 56.13011. Inspector Mueller and Clift agree that 

the cited gauge was broken, but that a connected air tank had a gauge that monitored the pressure 

36 FMSHRC Page 3153
of both tanks. (Tr. 213, 218-19). As the inspector testified, the hoses that connected the two 

tanks could be obstructed or damaged, which would cause the operational air gauge to stop 

monitoring the tank without a functional air gauge attached to it. All air tanks must be equipped 

with a pressure gauge and that gauge must be on the tank. I defer to the Secretary’s 

interpretation of the standard to require a gauge upon each tank. Respondent violated section 

56.13011. 

 I find that Citation No. 6593708 was the result of Respondent’s low negligence. The 

presence of the exhaust valve on the cited tank as well as the air gauge on the connected tank 

mitigate Respondent’s negligence. I hereby MODIFY Citation No. 6593708; a penalty of 

$100.00 is appropriate for Citation No 6593708. 

II. SETTLED CITATIONS 

The parties settled one of the citations in these dockets immediately before the hearing. 

In Docket No. CENT 2011-712-M, Respondent withdrew its contest of Citation No. 6593691 

and its $100.00 penalty. 

III. APPROPRIATE CIVIL PENALTIES 

 Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. I have considered the Assessed Violation History Reports, which were 

submitted by the Secretary. (Exs. G-2, 3, 4, 5). At all pertinent times, Respondent was a small 

mine operator. The violations were abated in good faith. The penalties assessed in this decision 

will not have an adverse effect upon the ability of Nelson Quarries, Inc., to continue in business. 

The gravity and negligence findings are set forth above. 

IV. ORDER 

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

 Citation No. 30 C.F.R. § Penalty

CENT 2011-712-M, Plant 3 

 6593690 56.14100(b) Vacated 

 6593691 56.12018 $100.00 

 6593692 56.14107(a) Vacated 

 6593693 47.44(b) 120.00 

CENT 2011-878-M. Plant 2 

 6593717 56.14201(b) 120.00 

 6593718 56.14107(a) 100.00 

 

36 FMSHRC Page 3154
CENT 2011-879-M, Plant 4 

 6593706 56.12002 125.00 

 6593707 56.12008 125.00 

 6593708 56.13011 100.00 

CENT 2011-1158-M, Plant 3 

 6593767 56.14100(b) 200.00 

 6593769 56.20003(a) 130.00 

 6593770 56.14107(a) 230.00 

 

 TOTAL PENALTY $1,350.00 

 Nelson Quarries, Inc., is ORDERED TO PAY the Secretary of Labor the sum of 

$1,350.00 within 30 days of the date of this decision.4

 

 /s/ Richard W. Manning

Richard W. Manning 

 Administrative Law Judge 

Distribution: 

 

Jamison P. Milford, Esq., Office of the Solicitor, U.S. Department of Labor, Two Pershing 

Square, 2300 Main Street, Suite 1020, Kansas City, MO 64108 (Certified Mail) 

Robert D. Ankeney, Conference and Litigation Representative, Mine Safety and Health 

Administration, U.S. Department of Labor, P.O. Box 25367, DFC, Denver, CO 80225 (Certified 

Mail) 

Paul M. Nelson, Nelson Quarries Inc., P.O. Box 334, Jasper, MO 64755 (Certified Mail) 

 4

 Payment should be sent to the Mine Safety and Health Administration, U.S. Department 

of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

36 FMSHRC Page 3155
1

 Post-hearing, Complainant retained Attorney Furth, who filed a post-hearing brief and a

reply brief on Mr. Estrada’s behalf. 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9933 / FAX: 202-434-9949

March 31, 2014

FRED ESTRADA,

 Complainant 

v.

RUNYAN CONSTRUCTION, INC.,

 Respondent

DISCRIMINATION PROCEEDING

Docket No. CENT 2013-311-DM

SC-MD 2013-06

Mine ID 29-00159

Mine: Tyrone Mine

DECISION ON LIABILITY

Appearances: Ben Furth, Esq., The Furth Law Firm, Las Cruces, New Mexico for 

Complainant 

Nathan Gonzales, Esq., Gonzales Law, Silver City, New Mexico for

Respondent

Before: Judge Moran

Summary

Before the Court, under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801

et. seq., (2012) (“Mine Act,” or “Act”), is a section 105(c)(3) complaint of discrimination which

was brought by Mr. Fred Estrada, acting initially pro se.1 A hearing was held in this matter on

November 19, 2013 in Silver City, New Mexico. Upon consideration of the entire record and the

post-hearing briefs, for the reasons which follow, the Court finds: that the Complainant engaged

in protected activity, when he made a safety complaint, identifying to his supervisor an

improperly repaired wiring connection for a truck’s auxiliary gas tank fuel pump; and that his

termination from employment ensued from that event. The Court rejects, as completely

pretextual, the Respondent’s contention that the Complainant was fired for failing to follow an

order from that same supervisor that he was to leave the keys for that same truck inside the truck

cab to allow access to it for a different repair. 

36 FMSHRC Page 3156
2

 The handwritten complaint is acknowledged by the Complainant to be incomplete, with

a page apparently missing from it. There is no evidence to suggest that the missing page was

intentionally dropped. Further, despite efforts, no full copy of the complaint could be located.

This was unfortunate but, as the Respondent has pointed out, the Complaint is not evidence

itself. The more important point is that the Respondent has long known, through various

documents, including the handwritten complaint, of the basis of Fred Estrada’s discrimination

complaint and, understanding that basis, it has countered that the reason for his discharge was a

failure to obey an order. 

Introduction

Complainant, Fred Estrada, on February 28, 2013, filed, pro se, his section 105(c)(3)

action, following a letter dated February 1, 2013 from the Mine Safety and Health

Administration informing him that its investigation did not conclude that there had been a

violation of the Mine Act’s discrimination provision. The letter went on to advise of the right

for a miner to file an action on his own before the Federal Mine Safety and Health Review

Commission. See, e.g., Turner v. National Cement Co., 33 FMSHRC 1059, (May 20, 2011). 

The February 28th letter was filed by David Estrada, brother of the Complainant, who was

assisting him due to, among several reasons, Fred Estrada’s limited education. Although several

“apparent violations” were brought up in the four-page typed letter, the “crux of the whole case”

was the claim that “[t]he complainant was terminated because he was exercising his right and

raising an issue about a safety defect on a piece of equipment. It was alleged that the

Supervisor, Todd Hamilton, took offense that the same safety defect was brought to his attention

again after he had apparently sent the equipment out to be repaired. He was apparently angry

that the complainant raised the safety issue and proved him [i.e. Hamilton] wrong.” February 28,

2013 letter to the Commission at page 2. At the time Fred Estrada initially filed his

discrimination complaint with MSHA, the same basis for his discrimination claim was identified. 

The document was handwritten2

 but, typed on the first page of that document, it informs that

Fred Estrada claims that he “[w]as fired for requesting safety defect on Bird Hazing truck to be

repaired. (No fuse for pumpon [sic] secondary fuel tank)” Discrimination Report at page 1,

parenthesis in original. The handwritten portion makes it clear that the complaint revolved

around the pump on the spare gas tank for the bird hazing truck. The pump stopped working and

the Complainant discovered that the fuse for the wires to the spare pump had burned out. 

Complainant noted this needed to be repaired. However, he later discovered that the wiring had

not been repaired properly and so advised Mr. Hamilton of that deficiency. Shortly after a

heated exchange between the Complainant and Mr. Hamilton over this issue, the Complainant

was fired. 

Hearing testimony and related Findings of Fact 

David Estrada, brother of the Complainant, acted, with the Court’s permission, as a 

non-attorney representative in this proceeding, as English is not Fred Estrada’s first language

and because of his limited formal schooling. In that role, David Estrada outlined in his opening

statement the basis of Fred Estrada’s Complaint, namely that Runyan supervisor Todd Hamilton 

Findings of Fact with Discussion

36 FMSHRC Page 3157
3

 For the record and for no other purpose regarding the Court’s findings and

determinations, it was noted that, when Fred Estrada was sworn in, and asked to raise his right

hand, he could not do so because he has a prosthesis on his right arm. Consequently, he raised

his left arm for being sworn. 

4

 Apparently under this dual tank arrangement, the truck would need a gas refill every

other day. 

5

 Complainant reiterated in his testimony that he had discovered the gas tank problem on

the 21st and informed Mr. Mitchell of it on that day. Mr. Mitchell looked at the problem with the

Complainant on that day. As of that point in time, the Complainant did not mention the problem

to any other Runyan management person, other than Mr. Mitchell. Tr. 36. 

took offense, when told by Fred Estrada of a safety defect on the truck he was assigned to

operate and informed that the defect had not been properly corrected. Tr. 23. 

The testimony began with Complainant, Fred Estrada.3

 Relating his description of the

events that led up to his termination from Runyan Construction, he stated that on September 20,

2012, Ms. Viola Ogas was his relief operator at the mine. Ms. Ogas informed him that the pump

for the spare gas tank on the truck had “run out.” Tr. 27. The spare or “extra” gas tank in the

truck was used to fill up the truck’s primary tank, when the primary gas tank would run out of

fuel. The extra gas tank was not used to run other machinery; it was simply an auxiliary gas tank

for the truck itself. Accordingly, to state the obvious, the truck in question was equipped with

two gas tanks: a main tank and a spare. Tr. 32. A pump delivered gasoline from the spare tank to

the truck. Fred Estrada advised Ms. Ogas that he and Walt Mitchell, another Runyan employee,

would check the spare tank issue. Tr. 27. On Fred Estrada’s first day back at work, September

21st, he told Mr. Mitchell about the pump issue and together they examined the spare gas tank

pump and found that the wiring from the pump to the battery had a burned-out fuse. That

problem, they concluded, caused the pump to stop working. Tr. 30. As a temporary fix, the two

employees cut the ends of the wires, circumventing the fuse, and then reconnected the wire ends

directly to one another, enabling the pump to work again.4

 Tr. 31. This occurred on September

21, 2012. After the temporary fix was done, Mr. Estrada went about his other duties at the mine,

which he described as “making [his] rounds.” Tr. 33. Late on the following day, the 22nd of

September, Complainant had to fill the truck’s gas tank and, in preparation for that, the wires for

the auxiliary tank were disconnected from one another and taped on each end. After doing those

tasks, Complainant proceeded to attend to other work duties at the mine. Tr. 34-35. 

Following that, late in the evening two days later, on September 24th, the Complainant

called Ms. Ogas from his home. Ms. Ogas had the same job duties as the Complainant; both

were employed as roving bird hazers. It was at that time that he told Ms. Ogas about the

problem with the truck’s auxiliary gas tank problem and the way it had been fixed it.5 Tr. 38. 

He left the decision about repairing the tank up to her, but expressed his opinion that it was best

if she took it to be fixed. Tr. 40. He also explained how the wires could be hooked up, in the

fashion he had employed. The Complainant stated that it was up to Ms. Ogas, not him, as to

whether to have the tank fixed. 

36 FMSHRC Page 3158
6

 The witness explained that the “conex box” referred to a large metal box where the

mine stores supplies. Tr. 44. Mr. Hamilton later confirmed that it is a metal storage building, of

approximate dimensions of 8 x 8 x 20 feet. Tr. 145-146. 

7

 An indication of the credibility of Mr. Estrada’s telling of this exchange is that he

remembered details of it, such as his claim that Hamilton, upon jumping in the back of the truck,

had trouble unlocking the lock to the pump. Tr. 45. Continuing, Mr. Estrada related that Mr.

Hamilton then had trouble putting the lock back on, to the point that he was going to leave it

unlocked. Mr. Estrada objected to that and told Hamilton to lock it, as he was concerned that, in

its unlocked state, it would fall off the truck and that he would be blamed for loss of the lock. 

Tr. 46.

The Complainant was then off from work from September 25th through the 28th, returning

to work on September 29th. During his time away from work he learned from Ms. Ogas that she

had brought the truck in to fix the gas tank pump problem on the 26th. However, Ms. Ogas

informed the Complainant on the 28th that, while she brought the truck in for the repair, all that

was done to address the problem was to cut the wires and tape them. No fuse was installed. 

Complainant then returned to work on the 29th and also worked on the 30th of September. 

No problems arose during either of those days. On Monday, October 1st, the Complainant found

that the truck was about a half-a-quart low on oil. Tr. 42. He then proceeded to drive the truck,

making his rounds, when he saw his supervisor, Mr. Hamilton, drive up to the “conex box,” 6

which is a place where the mine stored equipment. Tr. 43. The Complainant approached Mr.

Hamilton, requesting motor oil. According to the Complainant, Hamilton told him “in a very

bad way” to “look for some [oil].” Tr. 44. Mr. Estrada then began looking for oil in the conex

box but was only able to find heavy duty oil, which he considered unsuitable for use in the truck. 

It was then, as the Complainant exited the conex box, that he told Hamilton, “Oh, by the

way, Todd, that truck - - they took the truck in to be fixed, but it wasn’t fixed right.” Tr. 45. 

The Complainant related that Hamilton then became “really upset,” raising his voice and saying

“what do you mean?” The Complainant again told Hamilton that the truck wasn’t fixed right. 

Following that exchange, according to the Complainant, Hamilton got in the back of the pickup

and turned the pump on.7

 He then told Mr. Estrada, in a high voice, “See [ ] It’s working.” Tr.

45. At that point, the Complainant also became upset, telling Hamilton, “Yes, it’s working. But

they didn’t fix it right.” He informed Hamilton that the “repair” was nothing more than what he

and Walt Mitchell had done, simply connecting the wires. 

From Mr. Estrada’s recounting of this exchange, which the Court found to be a credible

recounting of the interaction between Mr. Estrada and Mr. Hamilton, it is fair to conclude that

Mr. Hamilton was significantly irritated with the Complainant. As recounted, per the footnote

below, Hamilton’s irritation with Mr. Estrada was heightened when he then had difficulty

unlocking the truck’s gas tank. Hamilton then told Mr. Estrada that he “better check [the

truck’s] fire extinguisher.” Estrada responded he would do that, but Hamilton told him “You do

36 FMSHRC Page 3159
8

 While Mr. Estrada believed another person was nearby – inside the conex box – while

he was having his unpleasant exchange with Mr. Hamilton, he did not know who that person was

and he did not believe that their exchange was heard by anyone else. Tr. 49. 

9

 The mechanic was mistakenly referred to as “Christiansen” but his true name is

“Tommy Christian.” Tr. 197.

10 Mr. Flores was the worker who took the place of former employee Walt Mitchell. 

it now.” Tr. 46. Estrada followed the order and checked the fire extinguisher immediately,

finding it to be in fine order. Hamilton then told Mr. Estrada to “clean the [bed of the] truck up.” 

Tr. 47. Again, Estrada followed the order and he started cleaning the pickup truck’s bed.8

 After

he finished cleaning out the bed of the truck, the Complainant left in the truck and completed the 

work day, October 1st, without further incident. Tr. 53. 

The following day, October 2nd, Fred Estrada, upon returning to work, was told that he

was needed at the contractor’s parking lot. When Mr. Estrada arrived at that location, Tommy

Christiansen [sic](the mechanic’s correct name is Christian),9 a mechanic who did work for

Runyan, was present, along with Mr. Oscar Flores.10 Estrada was asked to be there because

mechanic Christian was going to work on the truck. Tr. 55. Christian advised that he was there

to install a fuse for the gas tank arrangement on the truck. Although Mr. Estrada had some fuses,

apparently none were large enough for the gas tank fuse. Estrada related in his testimony that,

when mechanic Christian saw the taped wiring arrangement for the extra gas tank, he remarked

to him “Oh, man, this is wrong.” Although Mr. Estrada more or less knew what the problem

was with the wiring arrangement, he still asked the mechanic “What do you mean?” The

mechanic told him that, “Well, it’s fixed wrong. It’s wired wrong. Man, this is dangerous.” Tr.

57. Estrada then asked him, “what could happen?” and the mechanic replied that it “can catch

fire and blow the truck up.” Tr. 57. This did not surprise Mr. Estrada, as he knew that the taped

arrangement, with no fuse, was hazardous. The mechanic then asked Mr. Estrada who had

worked on the truck earlier. While Mr. Estrada actually had an idea who had done the poor

repair, he advised that he did not know who did the work, but he informed the mechanic that the

truck had been taken for the repair to the mine’s hilltop garage. Tr. 58. The mechanic then told

Mr. Estrada that it couldn’t have been mechanic “Mr. Brown,” because “[Mr. Brown] knows

better than that.” Mr. Estrada then helpfully responded advising that Mr. Brown has “a young

guy working there for him.” Tr. 58. The mechanic then commented about the young guy

working at that the garage, with the remark “that figures.” The mechanic then left to obtain the

fuse which was needed to properly repair the wiring. Later that same day the mechanic returned

and fixed the wiring by installing the fuse.

Following that repair, Mr. Estrada then continued making his rounds. However, a new

problem then arose with the truck, making it hard to turn the steering wheel. At the same time,

he also noted a smell, which he thought could be transmission or power steering fluid. He then

drove the truck to the conex box, although that was very difficult to do because of the steering

problem. From there, he radioed the front gate, using his hand radio, but no one responded. 

36 FMSHRC Page 3160
11 Freeport McMoRan, it should be explained, was initially a named Respondent in this

matter. On September 27, 2013, the Court issued its Order on Freeport-McMoRan Tyrone's

motion for summary decision, granting the motion and dismissing them as a party to this

proceeding. Runyan is an independent contractor working at Freeport-McMoRan’s mine site. 

12 Later, Mr. Estrada informed that neither he, nor Oscar, could find the year of the truck,

although they looked in the truck’s glove box and along its doors. Tr. 74-75. 

Mr. Estrada then called Sam Hill, an employee of Freeport McMoRan,11 and upon reaching him

on the radio, asked him to come down to his location. When Mr. Hill arrived, Mr. Estrada asked

him to drive him to the contractor’s parking lot, so that he could get a spare truck. Tr. 61. 

As Hill and Estrada were driving out of the mine, on their way to the contractor’s parking lot,

they met Mr. Hamilton, who was then driving in to the mine. Mr. Estrada informed Hamilton

about the truck steering issue and, in response to Hamilton’s question about its location, advised

that the truck was “out of the way,” meaning that the truck was out of the roadway. Tr. 62. 

Mr. Hamilton told him which truck to use, although Mr. Estrada already knew that he was to use

the spare truck. Mr. Estrada then drove the spare truck to the location of the broken one, and

removed his items from the broken truck. He then continued with his job duties. However, he

then received another call on his radio from the front gate. The radio transmission was very

poor; Mr. Estrada stated that he could barely hear the communication and he could not transmit

back to them. Subsequently, as Mr. Estrada was driving back inside the property, using the spare

truck, Sam Hill radioed him and advised that “Todd [Hamilton] want[ed] to talk with [him].” Tr.

65. Mr. Estrada informed Mr. Hill of his location and advised that he would be at the front gate

in about 15 to 20 minutes. Tr. 66.

When Mr. Estrada arrived at the front gate building, he inquired if Mr. Hamilton was

there. Danny Placencia and Ed McNally, who worked security there, advised that Hamilton had

left a few minutes earlier. Estrada was advised by security that they wanted the keys to the

broken truck and they suggested that he leave the keys with them. In that way, when the

mechanic arrived to fix the truck, the security personnel would be able to provide him the keys. 

Estrada did as instructed, handing over the keys to security. Tr. 67. Mr. Estrada then left and

picked up Oscar Flores. While in a vehicle with Mr. Flores, the office secretary, Kim, called

Flores’ cell phone, inquiring about Mr. Estrada’s whereabouts and informing Flores that Mr.

Hamilton wanted to speak with Mr. Estrada. Mr. Estrada then called Mr. Hamilton, who

asserted that he had already instructed Estrada to leave the keys in the broken truck. He then

told Estrada to go retrieve the keys from the front gate and put them in the broken truck. Tr. 69. 

Mr. Estrada responded to Mr. Hamilton that he would do as instructed. Hamilton then

added “Okay. And then go home.” Mr. Estrada was surprised about the last instruction and

responded, “Go home? [ ] What do you mean? It’s still early.” Tr. 70. Hamilton responded,

“No. Go home for disobeying an order.” Tr. 70. Mr. Estrada then replied, “Fine.” That was

not the end of the conversation however, as Hamilton then added an instruction for Estrada to

“[l]ook in the truck and see if [Estrada] can find the [model] year of the truck.”12 Tr. 70. To clear

up the Court’s understanding of this exchange, it inquired if Mr. Estrada understood that he had

been fired at that point in time. Mr. Estrada responded that, after being told to take the keys to

the truck and then “go home,” that he was not expressly told that he had been fired. Tr. 72.

36 FMSHRC Page 3161
13 Mr. Estrada repeated that his last day of working for the Respondent was October 2nd. 

Subsequent references to pay pertain to work done up to that date. Tr. 84, 87. 

14 Though not expressly identified in the transcript, “Brian” is presumed to refer to “Mr.

Runyan.” Tr. 83.

15 The Court advised that it wanted a copy of that termination paper and that it would be

made as an exhibit. Tr. 78. It was received as exhibit C-1.

Upon further inquiry by the Court, Mr. Estrada was asked if had misgivings about

leaving the keys in the truck. He affirmed that he did not think it was wise to do so because the

truck has an automatic lock feature and he was concerned that the door could lock with the keys

inside it. Tr. 72. Nevertheless, Mr. Estrada did as instructed and left the keys in the truck. This

meant he had to return to the front gate, pick up the keys, and then drive back to the disabled

truck to leave the keys there. At that point Mr. Estrada still had not been told, expressly, that he

was fired. His firing was only inferred by Hamilton telling him to “[t]ake the keys back and go

home.” Tr. 73. At that point, Mr. Estrada related that he was pretty upset and that he forgot to

call and tell Hamilton that he couldn’t find the year of the truck. He then drove back to the front

gate, parking the spare truck in the parking lot and leaving its keys at the front gate. Tr. 75. 

October 2nd was his last day of work.13 Tr. 80.

Mr. Estrada stated that he did not fully grasp that he had been terminated until October 

5th. October 3rd, a Wednesday, was Estrada’s regular day off. He related that he had some phone

calls from the office but that he didn’t call back. The next day, October 4th, he went by the

office, advising the secretary, Kim, that the office had called him twice. She advised, “Yes,

Fred. Todd told me to tell you that your services were no longer needed.” Mr. Estrada then 

asked if he could have his paycheck early, as he had been terminated, but the secretary told him

he would have to wait until Friday, the usual day for checks to be issued to employees. 

Thereafter, Fred Estrada did return on that Friday to pick up his check and inquired then if his

“termination paper” was ready. The secretary advised that it was not, informing “No. Whenever

it’s ready, [she would] call [him] so that [he could] come and sign it.” Tr. 77. 

However, he never received a call about his termination paper from that date, nor

thereafter, until the 19th of October. It was only then, on the 19th, when he returned to the office

to pick up his paycheck for days he had worked in his last pay period, that he was issued his

termination paper. Tr. 78. When he looked at it, he noticed that it was only dated and had no

reason for termination listed on it, nor was it signed by Mr. Hamilton or by “Brian.”14 Tr. 78. 

He told the secretary that he was in a hurry and asked if he could sign it later that day. She

agreed and also made a copy of the termination paper at that time, providing it to Mr. Estrada.15 

In further testimony concerning the termination paper, Mr. Estrada spoke to the fact that

he had two pieces of paper regarding this. He identified one of them as the one that the

Respondent’s secretary gave him on October 19th and this was marked by the Complainant as

36 FMSHRC Page 3162
16 Mr. Estrada explained that, by the time the secretary signed the other termination

paper, she was then the office manager. Tr. 86. 

17 It should be emphasized that the Court found that Fred Estrada was simply confused

when trying to answer the reason for filing his discrimination complaint and the Court noted that

Exhibit C-1. Tr. 83. Referring to that document, Mr. Estrada repeated that he noted that no 

reason for his termination was listed on the paper and that it was not signed by Mr. Hamilton,

nor by Mr. Runyan. Tr. 83. The paper was dated October 2, 2012. Tr. 84.

The second copy of the termination paper was then discussed. Regarding this one, Mr.

Estrada stated that he had not seen that version until he received it, subsequently, from Runyan

and that this occurred at a time long after his termination. Tr. 85, 87. The Court instructed Mr.

Estrada to mark this second version of the termination paper as “C-2.” Mr. Estrada then spoke

to the difference between C-1 and C-2. For C-2, he noted that the secretary had signed her name

to it.16 However, like C-1, C-2 did not list a reason for the Complainant’s termination. Tr. 86. 

Mr. Estrada reiterated that, at the time he was fired, he was only given C-1. The Court finds that

Mr. Estrada was in fact only given C-1 on October 19th. 

The Court then asked Mr. Estrada to express in his own words why he was terminated. 

His first response, indicative of his misunderstanding of the question, was that he didn’t “think

there was enough reason for being terminated.” Tr. 88. When the question was repeated, he

stated, “Because of not leaving the keys in the truck. That’s why. . . . I disobeyed his order.” Tr.

88. It is true that he repeated this answer when asked if he was let go for any other reason. Tr.

89. However, with the Court closely scrutinizing Mr. Estrada during his responses, it was clear

that he was simply providing the Respondent’s given reason for his termination.

At that point, Mr. Estrada’s brother, David, asked if he could explain the question to the

Complainant, Fred Estrada. Respondent’s Counsel objected to that request and the Court

continued with its questions. The Complainant continued to respond by stating that he was fired

because he disobeyed an order. Tr. 89. That order was that he leave the keys in the truck. 

When the Court then asked if the gas tank issue was any part of the reason why he was fired,

Fred Estrada stated, “No, sir.”

Naturally, Respondent’s Counsel was elated with these responses, but the Court strongly

believes that this glee was unwarranted for several reasons. First, as noted earlier, it was clear to

the Court that Fred Estrada was expressing the reason for his firing as put forward by the

Respondent and not as an expression of his own estimation of the genuine reason. Second, the

bulk of Mr. Estrada’s testimony pertained to the spare gas tank wiring issue and the conflict and

anger this produced with the very man who fired him, Mr. Hamilton. The issue with the key and

the claimed failure of Mr. Estrada to place the keys in the disabled truck was ancillary and, as

explained within, utterly does not add up as a genuine ground for Runyan to have dismissed Fred

Estrada. Third, even assuming for the sake of argument that Mr. Fred Estrada was not

confused17 and he believed that the failure to leave the keys in the truck was the reason for his

(continued...)

36 FMSHRC Page 3163
Mr. Estrada’s own written complaint is a more accurate statement of the basis for his Complaint. 

The face of that document, as the Court noted, shows that the complaint was related to the gas

tank wiring and fuse issue. Tr. 100-101. Mr. Estrada has an eighth grade education. Tr. 101. 

Counsel for Runyan objected to the Court’s determination that Fred Estrada was confused. 

Counsel also noted that the Complaint is only a pleading, not testimony. Further it objected to

the document’s admission under the “rule of completeness,” as it is not the entire document that

was admitted. As to the “rule of completeness” argument, the Court notes that this is a matter

for the trial judge’s discretion and that admission of the complaint did not create a misleading

impression about the nature of Mr. Estrada’s claim against Runyan. Further, this is not a

situation where a party is attempting to hide part of a document. Rather, the missing portion

was simply lost. See, e.g., Miller v. Holzman, 563 F. Supp.2d 5 (D.D.C 2008), U.S. v. Hassan,

742 F.3d 104, (4th Cir. 2014). Next, Counsel objected to the document as a foundational issue. 

However, that argument was simply an offshoot of the objection that it was incomplete. Tr. 103-

104. The objections were overruled. In terms of confusion, Fred Estrada did ultimately state

that he was confused about the questions regarding his dismissal, stating “I really didn’t know

what [the Court] was really meaning.” Tr. 105. The Court finds that to have been the case; Mr.

Estrada did not process, that is, did not apprehend, the question that was being asked. Finally,

Fred Estrada later added that his discrimination complaint was filed because he reported the

truck and that caused Mr. Hamilton to become upset. Tr. 106. That later remark was entirely

consistent with his claim of discrimination as originally brought and with his initial testimony on

the subject. It is abundantly clear that the aberration in his stated basis for his firing only arose

in the context of his confusion on the witness stand. 

18 Runyan’s Counsel attempted to show that Mr. Estrada’s initial answers regarding the

reason he believed he was fired were more reliable than his later responses, by asking, for

example, if he was then under the influence of drugs or alcohol when he gave those answers,

moments earlier, during the hearing. Tr. 108-109. However, Mr. Estrada did add that [Mr.

firing, the Court finds, based on the entirety of the record testimony, that the issue about the keys

for the disabled pickup truck was simply a pretextual reason, put forward so that the Respondent

could retaliate for Mr. Estrada’s safety complaint about the gas tank wiring issue. A

Complainant’s misperception of the reason for his firing during testimony does not defeat his

claim, especially when his original complaint and the wealth of his testimony points to a safetyrelated ground for his dismissal. 

Mr. Fred Estrada’s somewhat profound confusion on this subject was also exhibited

when the Court asked him about the fuse and the improper way of connecting the two wires, as

he had previously testified about. To that, Mr. Estrada quite naively expressed that he thought

Mr. Hamilton “would have told [him] about it, the reason for being fired.” Tr. 91(emphasis

added). 

Based on the entirety of David Estrada’s testimony, and equally upon the Court’s very

strong conclusions about the lack of credibility of Mr. Hamilton when he testified, as discussed

later, the Court concludes that Mr. Hamilton had no legitimate basis to fire Fred Estrada and that

the last thing he would disclose to Fred Estrada would be the real reason for that termination.18

17 (...continued)

(continued...)

36 FMSHRC Page 3164
Hamilton] was upset with him for reporting the truck not being fixed right. Tr. 109. He then

stated that Hamilton was upset for reporting the truck as being unsafe. Tr. 110. The person he

reported that to was none other than Mr. Hamilton.

19 Exhibits C-1 and C-3 were admitted. C-2 was admitted without objection from Runyan

because it reflects Respondent’s view of the termination letter that it claims to have issued to Mr.

Estrada. Tr. 111. It should be clear from the foregoing that the Court finds that only C-1 was

issued to Fred Estrada at or near the time of his firing and that it was woefully deficient with no

signature upon it and no reason for the discharge on it either. Further, as discussed infra, the

Court finds that, contrary to Mr. Hamilton’s claim, Fred Estrada was not given R-14 when C-1

was issued.

20 The last page of that document ends incompletely, stating: “So then when I.” Tr. 99. 

The Court acknowledged that the document was incomplete but, in the exercise of its discretion,

determined that the document could be admitted. In this regard the Court noted that, despite its

incompleteness, it was still useful in terms of identifying the basis for Fred Estrada’s complaint. 

Tr. 100. Counsel for Runyan stated his objections to the Court’s determination by noting that

there was no testimony that suggested Mr. Estrada was confused and noting that the Court three

times asked Mr. Estrada to listen closely to its question for him. Runyan’s Counsel also noted

that the Complaint is a pleading, not testimony. If that pleading is to be viewed as more than

that, Respondent objects that it fails the rule of completeness, by depriving Runyan of the

entirety of that document. As a third objection, Runyan’s Counsel objected to the document’s

admittance as a “foundational issue.” By this, Counsel explained, he repeated that his objection

was again that it was an incomplete document. This whole maelstrom, it must be remembered,

grew out of Fred Estrada’s misapprehension either out of the questions themselves or his

unschooled understanding of the basis for his dismissal. While much dust was raised over what

Respondent hoped was a windfall, once it settled, it was clear that the Complainant’s basis

remained as he originally contended; he was dismissed because of his safety complaint regarding

the unsafe wiring for the auxiliary tank and Mr. Hamilton’s ire towards Fred Estrada over that. 

Although Fred Estrada expressed a belief that Runyan would have fired him right at the time he

voiced his complaint about the gas tank, if his dismissal were based on the gas tank wires and

fuse issue, the Court views this as a jejune belief, especially considering his own testimony about

the gas tank issue and, of comparable significance, Mr. Hamilton’s quite unreliable testimony on

the subject. 

Also relevant to the issue of the Complainant’s allegations of the reason for his dismissal,

per the Court’s instructions, the Complainant marked C-3 as an exhibit and it was subsequently

admitted.19 Tr. 95. Fred Estrada identified that document as reflecting his handwriting and as a

copy of the complaint that he wrote and sent to MSHA.20 Tr. 97. 

Continuing with its cross-examination, Mr. Estrada upon being shown Exhibits R-1

through R-12, by the Respondent, identified them as the checklists for the pickup truck, each of

which he filled out. Tr. 113. R-1, the first presented to Mr. Estrada, is dated September 22,

2012, and he agreed that there is no mention in the checklist of any electrical problem, nor any

18 (...continued)

36 FMSHRC Page 3165
21 It was the contention of Respondent’s Attorney Gonzales that the issue of the day he

received his paycheck spoke to the Complainant’s credibility. The Court inquired whether the

testimony about the day Mr. Estrada received his paycheck was tangential to the proceeding. Tr.

122. The Court then instructed Respondent’s attorney to move on to something else, adding its

view that it would not “focus on that. If [the Court] were to decide[] this case based on that

business, that would be a total distraction.” Tr. 122. 

mention of fuel tank or wiring issues. Tr. 113. Only oil leaks were noted. After reviewing each

of them, and concurring that he made no notation of any fuel tank or related electrical issues on

any of the checklists, Mr. Estrada explained that he only listed major things. For example, he

would not list dents. Tr. 117. Although he conceded that the fuel pump electrical issue was

major, he did not mark it on the checklist because “it really wasn’t hooked up.” Tr. 118. He

added that he didn’t mark it on the list because “[t]he wires weren’t hooked up. That’s why I

didn’t.” Mr. Estrada agreed that he chose not to list the truck wire issue on the checklist. Tr.

119. 

Upon questioning by the Court on this issue, Mr. Estrada again confirmed that he never

did record on the checklist that there was a problem with the gas tank wiring. Asked to explain

further, Mr. Estrada stated: “Like I said, because we worked on that. And when I used the pump,

I would just connect it. That’s the reason that I didn’t write it up.” Tr. 123. Although he

confirmed that it was a problem, he explained his reasoning behind the decision not to record it,

advising “Like I said, because I would take it apart every time. The twice [sic] that I filled the

truck up with gas, I would move those wires.” Tr. 123. 

The Court finds Mr. Estrada’s explanation for failing to record the fuel pump wire issue

as credible, but more importantly, it finds that Respondent’s introduction of the issue to be a

distraction. If meant to show that there was no fuel pump wiring issue, Mr. Estrada’s testimony

and other testimony establishes otherwise and the Court’s findings with regard to the testimony

of Mr. Hamilton and Mr. Christian on this subject is that neither witness was credible on that

subject. Several other points need to be made concerning this. First, Mr. Estrada did take action

on the issue and advised Ms. Ogas about the problem. Second, a repair did occur, not long after

the problem was identified. Third, the test for protected activity does not depend upon a miner

ultimately being correct about a safety concern; only a reasonable, good faith believe need be

entertained. See, Secretary on behalf of Hannah, Payne & Mezo v. Consolidation Coal Co., 18

FMSHRC 2085, 2090 (December 1996); Secretary on behalf of Dunmire & Estle v. Northern

Coal Co., 4 FMSHRC 126, 133-38 (February 1982); Robinette, 3 FMSHRC at 807-12; Pasula, 2

FMSHRC at 2789-96. Here, there was more than a reasonable, good faith, belief on the part of

Mr. Estrada that a safety concern existed. 

Mr. Estrada also stated that he received his paycheck on October 5, 2012, which was 

payday at the mine. Tr. 121. He agreed that he requested his paycheck on the day he learned he

had been terminated, which was the day before payday.21 With the completion of Fred Estrada’s

36 FMSHRC Page 3166
22 David Estrada then responded that such testimony would pertain to defective radios

and toilet facility issues. He also wanted to introduce testimony that Mr. Hamilton continued to

allow the truck to be used, despite the wiring problem. Tr. 126-127. The Court advised David

Estrada that it did not consider that testimony to be material to the issues in this proceeding. Tr.

127. The Court then made a ruling on this proposed additional testimony advising that it would

only permit testimony about the incidents alleged by Fred Estrada that were contained in his

complaint to MSHA. Tr. 129. Those issues, it noted, pertained to the auxiliary pump, and

whether that pump was correctly wired, and a second issue, described by the Court as a “quasisafety complaint about leaving keys in a vehicle and that [practice] being against company

policy.” As to the latter, the Court expressed that it “didn’t know about the safety 

implications of that.” Tr. 130. The Court explained that any additional witnesses offered by the

Complainant would need to testify about matters which support the basis for Mr. Estrada’s

complaint. Tr. 131. 

23 Runyan’s Counsel contended that Mr. Estrada was “terminated for not obeying a direct

order of leaving the keys in the vehicle. . . . It [i.e. his firing] had nothing to do with any of the

alleged electrical incidents which took place . . . [further Counsel contended that Mr. Estrada’s] 

failure to do so [i.e. notify the employer of any major problems so they can correct them]

specifically negates his ability to further support his claim here.” Tr. 137-138. The problem

with Runyan’s Counsel’s re-telling is that Mr. Estrada, according to his testimony, did

specifically have exchanges with Mr. Hamilton about the wiring issue. Therefore, Mr. Hamilton

hardly needed a recorded checklist of the problem, as he was already quite aware of the issue. 

24 Even this claim, that Mr. Hamilton continually asked Mr. Estrada to please return the

keys, lacked authenticity. By his retelling, Hamilton was one step away from begging Mr.

Estrada to put the keys in the pickup truck. 

testimony, the Court inquired of David Estrada as to the witnesses and subjects he would be

covering next.22

Upon Mr. Estrada concluding his evidence, Runyan’s Counsel then moved for a directed

verdict. The Court heard Counsel’s arguments23 and, upon consideration of them, decided to

hold its ruling in abeyance, pending testimony from Respondent’s witness, Todd Hamilton. 

Tr. 138-139. Therefore, at that point in the proceeding, the Court ruled that there was a

sufficient basis for it to conclude that, minimal as it was, the Complainant had put forth a prima

facie case and that a safety issue had been presented along with a close-in-time termination. Tr.

139. 

Todd Hamilton then testified. The direct exam began without any preliminaries about

Mr. Hamilton’s duties or length of service at Runyan. Instead, for the first question posed, he

was asked to state the basis for the termination of Fred Estrada. He responded: “The basis is that

he was asked numerous times on October 2nd to please return the keys to the pickup [truck] so

we could have it repaired. At no time during that day till after 4 o’clock when I left the property

were the keys taken to the pickup or left in the pickup. I talked to him numerous times during

the day and asked him to please24 take the keys to the truck so we could get it repaired.” Tr. 140

(emphasis added). 

36 FMSHRC Page 3167
25 Hamilton stated that the truck was disabled due to a power steering issue. Tr. 144. 

Mr. Hamilton stated that he first spoke with Mr. Estrada during the morning about the

truck and the steering issue, adding that Sam [Hill] was with Mr. Estrada in a truck. He

continued that “we stopped outside the gate and [Mr. Estrada] told me about the problem with

the pickup.” Tr. 141. This occurred on October 2nd. Hamilton then asked Mr. Estrada about his

location and was advised that he was at the conex box. Tr. 141-142. Next, he told Mr. Estrada

that he would call Tommy, their mechanic, to fix the truck. The mechanic told him that he

needed to know the truck’s model year but when Mr. Hamilton went to the truck, he found it was

locked and he couldn’t find the keys. Tr. 142. Following that, he stated that “we” tried to

contact Mr. Estrada, using the mine radio, and by cell phone and by the front gate and also

through Runyan’s secretary, Kim, who was tasked to try and contact the other bird hazer, O.T.

Flores, all to convey the message to Fred Estrada to take the keys to the truck. Tr. 142. Mr.

Hamilton added that around 1:30 that day, Sam Hill called him on the phone and advised that he

then had Fred Estrada on the radio. Learning of that, Mr. Hamilton stated that he turned his

radio to Channel 12, and asked Fred Estrada to take the keys to the pickup truck. Estrada

responded, according to Mr. Hamilton, that he would “be there in 15 minutes.” Tr. 142. 

Learning that, Mr. Hamilton parked his truck near the broken pickup and operated “the blade”

for about an hour, but when he came back the truck was still locked. Tr. 142-143. His story

continued that “we then called the front gate numerous times besides once to try to get ahold of

Fred. Kim tries numerous times throughout the day. So when I was leaving the mine after 4

o’clock, the keys were at the front gate.” Tr. 143 (emphasis added). 

Mr. Hamilton denied that the keys had always been at the front gate, instead maintaining

that “Fred had the keys all day long.” Tr. 143. According to Mr. Hamilton, “[t]hey said that

Fred dropped off the keys at the front gate just a little while ago.” This occurred around 4 p.m. 

Tr. 143. According to Mr. Hamilton, he specifically requested that Mr. Estrada go unlock the

truck and leave the keys with it speaking “to him three times personally” about the matter. Tr.

144. 

At that point, the Court announced that it would have some questions about this

testimony and, as Runyan’s attorney announced he would be changing topics, the Court began its

questioning. Regarding the broken truck,25 the Court first inquired about the distance between

the disabled truck and the front gate, where the keys were eventually located and was told by

Hamilton that it was “half a mile to three quarters of a mile.” The Court notes that, even driving

30 mph, this means a time of less than two minutes was involved. Next, the Court asked about

the range of Mr. Estrada’s bird scaring duties in relation to the front gate and was advised that it

was “around a 5 mile radius.” Tr. 145. 

The Court then frankly advised Mr. Hamilton that, upon listening to his version of the

events, it seemed “like a rather small reason to decide to fire someone because they didn’t get the

keys over to the disabled truck.” Tr. 146. Hamilton responded that “Judge, after speaking to

him on three different occasions, he blatantly disregarded to take the keys to the truck so we

could get the truck repaired.” Tr. 146. 

36 FMSHRC Page 3168
The Court replied that it took that answer as reflecting Hamilton’s belief that such a

failure provided “a sufficient basis to fire someone.” Tr. 146. Given that posture, the Court

inquired whether Runyan had a policy of issuing warnings or whether in the alternative it would

go “from zero-to-ten” so to speak and fire someone, with no intermediate steps. The Court 

explained further what it meant, asking Mr. Hamilton to assume that the Court was employed by

Runyan and to further assume that it had certain job responsibilities and that it failed to do one of

those responsibilities. The Court then asked, “Is your company policy that that’s it, I’m fired? 

There’s no warning issued. There’s no paper? There’s nothing preliminary? You go right from

mistake or failure . . . [a] failure to obey [your] order, to you’re fired? Is that the way it works

[with Runyan]? Tr. 147. Mr. Hamilton’s response was unequivocal and short, advising “Yes,

sir.” Tr. 147. 

The Court then inquired of Mr. Hamilton as to the number of employees working at the

mine site. Two people had the bird-scaring responsibilities, but the Court then learned that 

Runyan’s work at the mine encompassed much more than that. In total, Hamilton estimated that

Runyan had about 40 employees at the mine. He then agreed with the Court’s characterization

that 40 is “quite a large number of employees.” Tr. 148. Given that, the Court then asked if

Runyan had a written policy as to how it deals with discipline. Mr. Hamilton responded, asking

if the question was whether Runyan had a written policy. He then added that Runyan has “safety

policies.” Tr. 148. 

This prompted the Court to ask whether Hamilton had understood the question and he

affirmed that he did understand it. Honing in on the issue, the Court then asked if “the company

[has] a policy that they adhere to such as - - a process [they use]. Tr. 148. Hamilton then

affirmed that Runyan does “have a warning document, yes sir.” Asked whether it ever issued a

warning to Fred Estrada, he responded, “No, sir.” Tr. 148. 

The Court then inquired whether, during that approximate time period, that is, during

2012, Runyan ever fired an employee without issuing a warning. Hamilton’s response was “No,

sir.” Tr. 149. That answer led the Court to inquire what made the Estrada case so special, that

Hamilton decided not to issue a warning, but instead to fire him for not getting the keys over to

the truck. The Court added, “Why didn’t you use a lesser tool than just deciding to fire him?”

Mr. Hamilton’s response was that because Mr. Estrada “blatantly disregarded anything

that I asked him to do that day.” Tr. 149 (italics added). This response perplexed the Court,

prompting it to ask for a clarification, as Hamilton had only cited the issue with the keys for the

pickup truck. Asked if he only requested Mr. Estrada to do that one thing that day, namely to

take the keys to the truck, Mr. Hamilton affirmed that in fact that was the only thing he asked

him to do that day. Thus, upon questioning, Hamilton admitted that his reference to Mr.

Estrada’s failure to do anything he asked him to do that day, in fact boiled down to failing to do

one thing. 

The Court then asked again if Hamilton could point to any other employee that he had

fired unceremoniously, with no warning first issued. To this, Hamilton replied “I never had to. 

I haven’t fired anyone.” Tr. 149. In candor, the Court, speaking to Mr. Hamilton’s credibility,

advised that him that it had “some problems with what [he] was telling [the Court]. Tr. 150. 

36 FMSHRC Page 3169
26 It is worth noting that after Mr. Hamilton stated that R-13 was the September 26

invoice for the repair of the electric wire and labor, his attorney then asked if it was the bill “to

repair the [steering] pump issue.” Tr. 155. Hamilton, contradicting his immediately preceding

testimony, agreed with his Counsel that the exhibit represented the bill to repair the pump issue. 

“Yes, it is.” Id. He then confirmed that this repair to the pump was done on the 26th. Id. The

document itself, R-13, shows that it had nothing to do with the power steering pump issue. 

Hamilton had just stated that he called the mechanic “for that truck for the power steering

pump.” Tr. 153. As noted infra, Mr. Hamilton and Mr. Christian did not even have their stories,

and “stories” is the correct term, lined up. As set forth in dictionaries, a “story” is a fictional

narrative. In this case, different versions of the “story” came from Hamilton and Christian. 

Counsel for Runyan then resumed his direct examination of Mr. Hamilton. Tr. 150. 

Picking up from Hamilton’s response that he hadn’t fired anyone before, he inquired if he had

ever before had anyone blatantly disregard his orders for eight hours, to which he responded,

“No sir.” Asked how many times the mechanic had gone “out there to go fix that vehicle,

Hamilton responded, “At least once, twice.” Tr. 150. He affirmed that his asking Estrada more

than once to take the keys to the truck weighed in his decision to fire him, stating that it is

important for every employee “to be accountable for their actions.” Tr. 151. Hamilton also

advised that he had worked at this mine for 20 years and during that time had always had people

working under him. He agreed that for the business to run properly employees cannot do

whatever they want. He also denied that he had ever had any “cross words” with Mr. Estrada.

The Court then inquired about the mechanic who repaired the truck, asking if he is a

Runyan employee. Hamilton described him as “a part-time employee.” Tr. 153. The Court

asked if it would be correct to assume that the mechanic would have been at the mine that day,

regardless of the truck repair issue. However, Mr. Hamilton stated that he did not know if the

mechanic was on the mine property earlier that day. Hamilton did state that he called him to

look at the truck and that he had called him “for that truck for the steering pump.” Tr. 153.

Mr. Hamilton was then presented with an invoice to Runyan for the truck repair from

Hilltop Service, dated September 26, 2012. That bill was the bill “for electric wire and labor.”26

Tr. 155; R-13. Hamilton then agreed that safety at the mine is a concern of his and that repair of

a broken vehicle is a concern related to such safety. Tr. 157. In this instance, Mr. Hamilton

stated that his concern was “[b]ecause the policy of fluid being displaced on the ground in the

mines, [and it is Runyan’s] policy to repair any defects as soon as possible.” Tr. 158. Following

a series of extremely leading questions, Mr. Hamilton agreed that the extra time involved in

repairing the fluid leak was, as Counsel expressed it for him, “something that raised the level of

noncompliance, simply this employee not responding to you, to a different level in your mind?” 

“Yes, it did,” Mr. Hamilton responded cooperatively to the leading question. Tr. 160.

Respondent’s Counsel having completed his examination, the Court made further

inquires, handing Exhibit C-2, a termination notice for Mr. Estrada, to Mr. Hamilton. The Court

inquired if that was the termination notice Mr. Hamilton was relying upon as the notice which

was submitted to Mr. Estrada. Hamilton advised that it was, adding “[a]nd also the letter that I

36 FMSHRC Page 3170
27 Counsel for Respondent represented that R-14 was part of Ex. C-2, stating that it was

the back page for the notes portion from Mr. Hamilton. Tr. 162. 

had wrote [sic] per the notes that was with it also.” Tr. 161. This was represented to be the back

page of Exhibit C-2 and it was separately marked as R-14.27 Hamilton then stated that he wrote

this regarding the termination of Fred Estrada and that he created it on the 3rd [of October],

which was the next day. He stated that it was presented to Fred Estrada when he was terminated

and that it set forth the reasons for that termination. Tr. 163. The Court finds that it is

extremely unlikely that Mr. Hamilton presented the letter, R-14, to Mr. Estrada. The typewritten

letter is not at all of the nature that an employee would be presented upon being terminated. 

Rather, on its face, it is merely a defensive attempt to set forth a justification for Mr. Hamilton’s

action to fire Fred Estrada. 

Regarding other discipline he had taken against employees, Hamilton then stated that he

“had suspended employees about four years ago.” Tr. 164 (emphasis added). He then, when

questioned, stated that it was one employee and that this occurred about four years ago. Tr. 164. 

The reason, he stated was: “I believe it was damaging a pickup.” The Court noted that “[s]ince

these events you told me are rare, in fact you can only think of one instance in [the past] [f]ive

years . . .” , it wanted to learn what occurred. Tr. 164-165. Hamilton informed: “I believe the

pickup ran into reflectors and damaged the whole side of the pickup.” Tr. 165. 

The Court then inquired, “how does the suspension process work? Just get a letter that

you’re suspended, or does he first get to discuss this with people in management first?” 

Hamilton responded, “Uh-huh,” and the Court advised that “‘Uh-huh’ is not an answer.” 

The Court then asked whether the employee gets a chance to present his reasons why he should

not be suspended, to which Hamilton responded, “No. He was suspended for three days.” Tr.

165. 

Inquiring further about Runyan’s practice, as told by Mr. Hamilton, the Court asked if

there was any appeal from such a decision. In this regard it asked, if an employee28 is told that

he is going to be suspended, is he told, for example, “you’re going to be suspended. We’re

going to talk about this, and then we’re going to make a final determination” or does Runyan

“just sort of decide and [the employee] only learns of it with no right to express his point of

view?” Tr. 165. “No,” Hamilton responded to the Court, “We talked about that suspension.” 

Tr. 166. However, Hamilton maintained that the employee was first suspended with the talk

following that action. Tr. 166. The Court then wondered, given that the hanging was followed

by the trial, what there was to talk about. Mr. Hamilton’s response was “Well, I don’t know, sir,

what you’re - - talk about? I’m not - - ” Tr. 166. The Court then reminded him that he had just

stated that he talked with the employee about the suspension. Hamilton responded that his talk

consisted of telling the employee that “he’s going to be suspended for three days.” Tr. 166. His

answers, in the Court’s estimation, were all very confusing and for good reason: they did not add

up nor did they make sense. 

28 For illustrative purposes of its question, the Court named a hypothetical "Jim" as the 

employee facing discipline.

36 FMSHRC Page 3171
The Court then turned to Mr. Hamilton’s version of his interactions with Fred Estrada

and in particular with issues about the pickup truck. Mr. Hamilton affirmed that he recalled that

interaction. On the issue of checking the fire extinguisher on the same truck involved with this

dispute, Mr. Hamilton stated that, although he had such a discussion, it did not occur on October

2nd. Tr. 166. He did note that the fire extinguisher was not checked off and he told Estrada to do

that right away. Next, the Court asked if, having heard Mr. Estrada testify about the issue of

cleaning up the truck, Hamilton agreed that he heard Mr. Estrada’s testimony at the hearing

about that, but when asked if the two had such a conversation, as Mr. Estrada had asserted,

Hamilton asserted, “I don’t believe so, no, sir.” Tr. 167. Unsure what that response meant, the

Court inquired further, asking if that meant he was uncertain, Mr. Hamilton then stated, “No

such conversation occurred.” Further, when the Court inquired of Hamilton if he had any

conversation with Fred Estrada about the auxiliary gas tank and wiring issue, he stated, “No. I

deny that.” Tr. 167-168. In fact, when the Court asked if Hamilton had ever had “any

discussion with Fred Estrada about this wiring issue for the auxiliary tank,” he stated, “No

discussions. . . . never.” Given these conflicting accounts, Mr. Hamilton agreed with the

Court’s characterization that either Mr. Estrada or Mr. Hamilton “is not telling the truth or isn’t

remembering.” Tr. 168. It is the Court’s conclusion that it was Mr. Hamilton that was clearly

not telling the truth. Even the Respondent’s own exhibit, R-13, shows that the electric wire issue

on the truck was repaired on September 26, 2012, a date consistent with Mr. Estrada’s testimony

about the problem and the dates. 

David Estrada then had an opportunity to ask questions of Mr. Hamilton. This began

with the subject of Mr. Hamilton’s statement that he had spoken with David Estrada three times 

on October 2nd. The first time, he stated, was about 8:30 that morning. He maintained that Fred

Estrada told him the truck was broken down and that he, Hamilton, then told him “to leave the

keys there so that the mechanic could fix the truck.” When challenged that the truck did not

even break down until that afternoon, around 2:30, Mr. Hamilton denied that was the case. Tr.

169-170. Pressed further about his assertion that he spoke with Fred Estrada three times that

day, Mr. Hamilton stated that each of those conversations involved “[t]he same pickup, the same

keys.” Tr. 170. Hamilton was asked how he reached Fred Estrada on the three occasions. 

Hamilton responded that the first time was “face to face passing each other in the pickup.” The

second occasion was around 1 o’clock and was “on the radio . . . on the phone . . .” And the

third occasion was around “4:30, 5 o’clock.” Tr. 171. 

Hamilton contended that he did not fire Estrada at the time of the 5 o’clock conversation,

although he admitted that he told Estrada then to “go home.” He added, “It was late in the

afternoon. I thought it was time to go home. It was close to 5 o’clock.” Tr. 171. When

challenged about this assertion, and asked if Fred Estrada “still had a couple of more hours to go

[on the shift],” Hamilton responded, “That’s what I said.” Tr. 171. The Court sought

clarification. Hamilton agreed that he was referring to October 2nd at a time near but not quite at

the end of the work day when he told Fred Estrada to go home, adding “I said ‘Once you’ve got

the keys there, you can just go home.” Tr. 172. He maintained that at that time he had not yet

decided to fire Mr. Estrada and that he “didn’t make up [his] mind till when [he, Hamilton] got

home that night.” Tr. 172. The Court finds this to be another incredible recounting from Mr. 

Hamilton. 

36 FMSHRC Page 3172
29 The Court then stopped the questioning on that point, commenting that it had been

pursued as far as it could go. It went on to note that it would need to compare Mr. Hamilton’s

written statement, which he stated was prepared the day after the termination notice was issued

to Mr. Estrada, with his testimony at the hearing, to determine if conflicts existed. The Court

made no suggestion about its 

conclusion on this point and noted that it was possible that it could determine there was no

conflict. Tr. 175.

30 Runyan’s attorney objected to the warning notice document on multiple grounds,

asserting that it was: too old, occurring in 2008; that it was issued by one other than Mr.

Hamilton, and; generally, that it was not relevant or material. David Estrada’s purpose in

introducing the document was to refute the claim that Runyan does not issue warnings to

employees. Tr. 178-180. Runyan had known of the document, as Mr. Estrada produced it as

part of his response to Runyan’s discovery request of him. The Exhibit was marked for

identification as C-4 but it was never admitted to the record. Mr. Hamilton stated that he did not

recognize the document, asserting that he had not seen it until the hearing. Tr. 181. Upon

further questioning by the Court, Hamilton did state that, although he had not seen this document

before, he had seen a warning notice issued by Runyan about two months before this hearing,

adding that it was on a different looking form. The Court finds that the issue of whether Fred

Estrada had ever received a warning notice for an event unassociated with this dispute and

whether Runyan issued warning notices as a general practice is not necessary to resolve, as there

is ample testimony in the record from the Complainant, Mr. Hamilton and Mr. Christian, to

decide this discrimination matter. 

David Estrada then resumed his questioning, further challenging Mr. Hamilton’s

assertion that he spoke with Fred Estrada three times on October 2nd. In this regard David

Estrada noted that Mr. Hamilton’s statement that he tried to reach Fred Estrada on the phone and

received no response and on the radio, also with no response, and that he had the front gate call

Estrada numerous times. Hamilton spoke to one aspect of this, stating that he did not assert that

Kim got no response but rather that she “made contact with [Fred Estrada] and with O.T. also.” 

Tr. 173. However, Hamilton did not know the time when Kim received a response from Mr.

Estrada. He then expressed uncertainty whether Kim actually talked only to Sam Hill but not Mr. 

Estrada. Tr. 174. Hamilton still maintained that he talked to Mr. Estrada three times that day. Tr. 

174.29

On the subject of whether Runyan issues warnings to employees, David Estrada asked

Mr. Hamilton if Fred Estrada was issued a warning on September 5, 2008, in connection with an

allegation that he was sleeping on the job and also presented a warning notice.30 

On redirect, Counsel for Runyan asked Hamilton to explain his earlier answer that the

mechanic was a part-time employee. Hamilton stated that the mechanic was an independent

contractor, not a part-time employee of Runyan. That mechanic, Tommy Christian, is the

owner/operator of Maverick Mechanical. Runyan’s Counsel then turned to Mr. Hamilton’s

statement, addressing “some of [Mr. Hamilton’s] timing with regard to [his] statement.” Tr. 185. 

On this second go-round, Mr. Hamilton stated that on the 2nd of October he saw Mr. Estrada at

36 FMSHRC Page 3173
7:30 that morning at the conex box. At that time Hamilton stated that he did not know about the

pickup truck’s failure and that he learned of it when he “passed Sam Hill and [Mr. Estrada] when

they were leaving the front gate.” Tr. 185. This occurred at 9:30 or 10:00 a.m. He stated that at

that time he then told Mr. Estrada to leave the truck unlocked. Hamilton then agreed with his

attorney statement that he came back to the truck later and found it locked. Tr. 186. Upon

finding the truck locked, again with Hamilton providing one word affirmative responses to the

questions posed by his attorney, Hamilton agreed that he then tried unsuccessfully to reach

Estrada on the radio, then having the front gate guards trying, again without success, and then by

having Kim try to reach Estrada and the other bird hazer. Tr. 187. 

Mr. Hamilton then revisited his second attempt to reach Mr. Estrada that day, advising

this occurred when Sam Hill was on the phone with him (i.e. with Mr. Hamilton) and also on the

radio. According to Hamilton, Sam Hill called him on his cell phone and advised that he was in

contact with Fred Estrada via Hill’s radio. Hamilton then turned his radio on, tuned to Channel

12, and spoke directly with Fred Estrada. Tr. 187. He maintained that all three were on the

radio at that time speaking with one another: Hamilton, Estrada and Hill. Tr. 188. At that time,

Hamilton stated that he asked Fred Estrada to “please take the keys to the pickup. And that’s

when [Fred Estrada] stated he would be there in 15 minutes.” Tr. 188. However, Hamilton

stated that Estrada did not show up with keys. Id. Again, resuming his diminished testimonial

role as one affirming the statements of his attorney, Hamilton answered ‘yes’ the mechanic

showed up after that. He stated that mechanic Christian called him, advising that the truck was

locked. At that point, Hamilton stated that “we started making our phone calls again to the front

gate, Kim and myself.” Tr. 188-189. Hamilton stated that he did not get a hold of Estrada until

after 4:30 and discovered that the keys were at the front gate “when [he] went to go check out.” 

Tr. 189. Runyan’s attorney continued, stating, “Mr. Estrada left without notifying you that he

had left, and you were on your way out. What happen[ed] at the front gate?” Hamilton stated

that was when he “was informed that the keys were at the front gate, that [Mr. Estrada] had just

dropped the keys off a little after 4:00.” Continuing with what was, practically speaking, the

attorney’s testimony and Mr. Hamilton’s mere agreement with it, Hamilton advised that the

mechanic left and returned the next day to make the truck repair. As Counsel for Runyan stated,

“And you had to pay this mechanic to go out there twice; right?” Hamilton responded, “Yes,

sir.” Tr. 189. 

Mr. Hamilton also denied: that he had “words” with Mr. Estrada; that he was short and

raised his voice with him; that he had any personal animosity; and that he had any ill will

towards him. Tr. 190. In sum, Hamilton expressed that “[e]mployees need to abide by

instructions they are given so that the company can keep working.” In his view, Mr. Estrada’s

alleged failure to abide by those instructions, again in his attorney’s words, were “so serious that

termination was warranted [.]” 

Upon re-cross-examination, Hamilton was asked if he considered it to be a safe practice

to simply leave the keys in the truck, and he responded that in his view it was. Tr. 193. 

However, Hamilton also stated that he was aware of the issue of that truck on occasion being

locked with keys in it. Tr. 193. He then amended his response, stating that he was not aware of

that, advising that he thought the Court’s question was whether the truck would be locked with

the keys left outside it. Asked what his instructions were to Mr. Estrada about the truck’s keys,

36 FMSHRC Page 3174
Hamilton stated that he told him to “[j]ust to take the keys to the truck and unlock the truck and

leave the keys there in the truck.” Tr. 193 (emphasis added). When asked again if he meant 

“in” the truck, Hamilton reaffirmed that was what he meant. Tr. 194. 

David Estrada then asked Mr. Hamilton if it was true that “your policy was to leave the

keys at the front gate, check in and out every time you come in?” As Mr. Hamilton began with a

non-responsive response, the Court interjected that this was a very basic question and to answer

if that was the company’s policy. He then responded “Yes. The keys - - In the parking lot. 

When the pickup is in the parking lot, being that it has the bird-hazing equipment in it, they do

take the keys after the shift and take them to the front gate in the parking lot.” Tr. 194. Hamilton 

denied that he had a second set of keys for the truck, a 2008 model and that there was not a

second set of keys for it. Tr. 196. 

Following Mr. Hamilton’s appearance on the witness stand, the mechanic, Mr. Tommy

Christian was then called to testify. He stated that his business is Maverick Mechanical and that

he is self-employed. As a subcontractor for Runyan, when he goes to the mine, he writes a

receipt and then is paid for his work. Tr. 198. He affirmed that he had occasion to work on a

disabled vehicle at the Tyrone mine on October 2nd and that he had received notification that it

was broken in the morning of that day, around 10 a.m. However, he stated that he couldn’t get to

the mine until “a little bit after 4:00” that afternoon. He stated that he was unable to work on the

truck that day because it was locked and there were no keys. Tr. 200. Because of this problem,

he called Mr. Hamilton and waited for the keys, stating that he waited “[p]robably at least an

hour an a half that night. And then the next morning I came and got the keys,” he believed, from

Mr. Hamilton, though he couldn’t be sure of that. Tr. 200-201. He then drove the pickup

directly to the Ford dealer, after first adding power steering fluid to it. Tr. 201. Following that,

he gave Runyan an invoice for his work, which was thereafter admitted. R-15. It reflects two

charges, one of which was for October 2nd, for $133. 

The Court then asked Mr. Christian about the year of the vehicle, which he believed to be

either a 2004 or 2005 model year. He stated that, once he gained access to open the vehicle the

following day, he had no trouble finding the vehicle’s identification information. In effect, he

stated this information didn’t matter, because he simply drove the vehicle to the Ford dealer. 

However, he stated that the Ford dealer never advised him that the ID information was missing

from the pickup. Tr. 205. 

Mr. David Estrada then asked Mr. Christian about his repair of the truck fuse problem,

inquiring about the day that occurred. Christian could only respond that the fuse problem was

not repaired on the same day, i.e. that repair was not done on October 2nd. Tr. 206. He admitted

that he did suggest that they “put a fuse in if we wanted to get the fuel tank to work later on.” 

Tr. 206. He also stated he “saw the wires taped together with tape and folded back and not

connecting to a battery at the time.” Tr. 207. He also remembered that repair. Agreeing that he

is a “certified” mechanic, and responding to whether it would have been improper to make the

fuel tank work by connecting the wires as they were and that one should have a fuse in place, he

stated: “You could have - - there’s several ways to do it. You can have a fuse. You can have a

butt connector. You can have a nut connector on there.” Tr. 207.

36 FMSHRC Page 3175
It was obvious to the Court that Mr. Christian did not want to testify in a manner that

detracted from his customer’s case. When the Court inquired whether one would not want “just

to tie the two wires together and wrap it with electrical tape,” he answered, “I’ve seen people do

that, but it’s not my practice.” Tr. 208. The Court had to press further, following up with

“[b]ecause it has potential risks, does it not?” Christian finally relented, answering, “Yes, it

does.” Tr. 208. 

David Estrada then continued, asking Mr. Christian if he asked Fred Estrada who had

repaired the truck pump wire issue in the first place. Christian responded, “I could have. I don’t

remember at the time.” Tr. 208. Pressed further by Mr. David Estrada, Christian avoided a

direct answer and the Court took note of that, stating, “No. no. [David Estrada’s] question was

do you remember having a conversation with Fred Estrada about the problems of having [the

pump wiring] be that way? Do you remember that conversation with Fred Estrada?” Tr. 208. 

Christian answered, “I had a conversation with Fred [Estrada] about how we could rewire it to

make the pump work.” Tr. 208. When asked if he made any statement to the effect about it not

being a good way to just tape the wires together, Christian denied it, instead offering that he

“said this is the way I would do it, Your Honor. I would put a fuse in there, and then we would

connect the battery if we wanted the fuel tank to work, the auxiliary fuel tank to work.” Tr. 209. 

This testimony reinforced the Court’s earlier conclusion that Mr. Christian was doing everything

he could to present his repair in a light most favorable to Runyan, but at the end of the day it was

clear that his testimony was evasive until the point that he had to admit that the wiring was in

fact improperly done. 

When David Estrada continued on this issue, Christian stated that he never repaired the

fuse, but rather repaired a fuse “for the buggy whip light.” Tr. 209. The Court then again

inquired about this repair. While Christian conceded that he noticed the auxiliary gas tank

connection problem, as he told Fred Estrada that the taping of the wires would not be the way he

would address the problem, he repeated that he never fixed that issue. “I never made the

correction on the vehicle because it was to the auxiliary fuel pump, and I didn’t know whether

they wanted me to repair it and use that pump. . . .” Tr. 210.

Christian did repeat that he waited around for an hour and a half to gain access to the

pickup for the power steering issue. He also stated that he checked in with security and that he

always has to do that. However, he stated security did not have the car keys. Stating that Mr.

Hamilton had testified that he left the property at 4 o’clock on October 2, David Estrada asked

Christian if he met him at the gate. Christian stated that he did not meet Hamilton, that he only

“met” him by phone. He had called Hamilton to inform him that he did not have the pickup’s

keys and that this occurred around 4 o’clock or 4:30. On redirect, Respondent’s attorney asked

if he ever told Fred Estrada that the wiring could cause the vehicle to blow up, and whether it

could cause it to catch on fire. The mechanic responded ‘no’ to those questions. Tr. 213. The

Court would note that this question, rather than helping Respondent’s claims, reconfirms that

Mr. Christian was fully aware of the truck gas tank issue, despite his late claim that his

September 26 repair invoice was for a buggy whip wire. The invoice itself only informs that it

was for an “Elec Wire” and that Viola Ogas’ signature was on the invoice. Ex. R-13. 

36 FMSHRC Page 3176
Fred Estrada then retook the stand. On redirect he stated that he left the pickup’s keys at

the front gate as he drove in. This was a little after 4:00 p.m. He informed that, upon arriving, 

Danny Plancencia was the security person there and Fred asked him if Mr. Hamilton was on the

property. Placencia checked with the other guard and then advised Fred that Hamilton had left

the property. Placencia then told Fred that they wanted the pickup keys and suggested that he

leave the keys there at the front gate. Further, Placencia told Fred, in that way, if the mechanic

arrived, they would give him the keys. Fred Estrada agreed with that suggestion, and left the

keys with security. Tr. 215. Placencia then took the keys and took them inside the security front

office. 

Fred Estrada also took issue with mechanic’s claim that he (i.e. Mr. Christian) did not tell

him about the safety concern with the fuse, stating, “No, that’s not true. And it was the same

day. He was saying that it’s not - - that it wasn’t the same day, and it was. He told me - - well, it

must have been - - to work on the fuse, it must have been about 12:30 or so, maybe 12:15, 12:30. 

They called me to go to the contractors’ parking lot; so I did. When I got there, Mr. Christiansen

[sic] was there. And I just asked him. I said, ‘Well, do you want to talk to me?’ And he said,

‘Yes.’ He said, ‘I came to fix the fuse on the truck.’ So I said, ‘Fine.’ So he opened the hood to

the truck, and that’s when he [Christian] said , ‘Oh, man. Who worked on this truck?’ ” Tr. 216. 

Mechanic Christian inquired further about this and Mr. Estrada told him there was a

young guy working at the Hilltop Garage on the truck. Upon hearing that, the mechanic

responded, “Well that answers my question.” Mr. Estrada continued to relate his interaction

with the mechanic and that the mechanic checked out the wires, advising that “he didn’t have no

fuse.” The mechanic then looked in his toolbox, finding that he didn’t have a fuse of the

appropriate size to install. He then informed Mr. Estrada that he would need to run into town to

get the needed fuse. Tr. 217. Later, the mechanic returned with the fuse and fixed the problem,

whereupon Mr. Estrada left. Tr. 218. 

That same afternoon, the other problem with the truck’s steering fluid arose. When that

happened Mr. Estrada managed to drive it to the conex box and called about the problem, finally

reaching Sam Hill, who drove to the conex box to pick up Mr. Estrada. Hill drove Estrada to

the contractor’s parking lot and it was then that he met Hamilton who, along with another rider,

was driving into the mine. Estrada then informed Hamilton what had happened with the truck. 

In response, Hamilton asked if the truck was out of the road and Estrada advised that it was off

the road and at the conex box. Hamilton then told Estrada to get a different truck, identified as

“Runyan 4.” Mr. Hill drove him to the contractor’s lot, where Estrada retrieved Runyan 4 and he

then resumed making his rounds. Tr. 218-219. The Court specifically finds that the truck

steering issue arose during the afternoon that day, not, as Hamilton asserted, that morning.

Following that, around 2:30 to 3:00, he received a call from the front gate. However, he

could barely receive the call and he could not transmit a response. He continued his work and

then, around 3:30, he received another call, advising him that Hamilton wanted to speak with

him. Estrada advised that he would be at the front gate in about 15 minutes but, upon arriving

he did not speak with Hamilton, as he had left by that time. He then resumed his work, helping

Mr. Flores check an area at the mine. Kim then called Mr. Flores, who advised that Mr. Estrada

was with him. He passed his phone to Mr. Estrada and Kim spoke with him, informing that Mr.

Hamilton wanted to speak with him. Tr. 219-220. Hamilton then spoke with Estrada, telling

36 FMSHRC Page 3177
31 Runyan’s Counsel filed a post-hearing brief, but did not file a response brief. The

Court read and considered all contentions made by counsel in the post-hearing briefs. Any

absence of discussion to a particular contention does not mean that it was not considered but

only that it did not require particular comment. 

him that he was to pick up the keys for the disabled truck, take them to that truck, leave them in

the truck, look for the year of the truck and then go home. Tr. 220. Estrada then went to the

truck with Mr. Flores. Although uncomfortable about leaving the keys in the truck, because of

the automatic locks issue, he did as instructed by Hamilton, leaving the keys in the truck. He

then returned to the front gate, signed out around 5 p.m., and then went home. Tr. 220-221. 

The Parties’ Briefs31

Complainant’s Contentions

As noted, Fred Estrada proceeded pro se at the hearing but subsequently secured legal

counsel, which Counsel filed both a post-hearing brief and a reply brief on Complainant’s behalf. 

Complainant’s Counsel contends that Mr. Estrada engaged in protected activity when he

reported the safety issue with the truck’s spare fuel tank pump wiring and that his subsequent

termination constituted an adverse employment action. C’s Br. at 15-16. It then contends that

the nexus between the protected activity and the termination was established, noting that the

Complainant was fired one day after the protected activity. To that, Complainant’s Counsel

maintains that the element of knowledge of the protected activity was also established when Fred

Estrada informed Mr. Hamilton, Runyan’s project manager and safety director, that the pump

wire had not been fixed correctly. The element of animus was also demonstrated through Mr.

Estrada’s testimony, relating Hamilton’s angry reaction upon being informed that the pump wire

had not been repaired properly. R’s Br. at 19. Beyond the establishment of those elements,

Complainant’s Counsel points to the presence of disparate treatment on two grounds. First, it

contends that Mr. Estrada was following Runyan’s policy by leaving the truck’s keys at the front

gate. Second, the Complainant was treated differently both in terms of the procedure employed

and the punishment imposed. Regarding the procedure, it notes Mr. Estrada received no prior

warning and was simply fired, while Hamilton conceded that another employee had only been

suspended, not fired, upon an infraction. Second, the sanction imposed against Mr. Estrada,

firing, was greater, even though the other employee’s action was more serious, having damaged

the whole side of a truck. C’s Br. at 20. 

Addressing the subject of whether Runyan rebutted Estrada’s prima facie case, Counsel

for the Complainant notes that the Respondent contends that Mr. Estrada did not list the pump

wiring issue on the small truck operator’s checklist and asserts that Mr. Estrada never had the

conversation with Mr. Hamilton about the matter, noting that the latter denied its occurrence. 

C’s Br. at 21. To these contentions, Complainant simply notes that Mr. Estrada verbally

informed Runyan of the issue and that there is no requirement that such complaints need to be in

36 FMSHRC Page 3178
32 Complainant’s Counsel also makes the related, but important, observation that, to be

valid, a miner need only have a reasonable belief of a safety concern; it need not be objectively 

demonstrated that, in fact, the safety concern was verified as present in fact. C’s Br. at 22, citing

Bradley v. Belva Coal Co., 4 FMSHRC 982, 992 (June 4,1982) citing Robinette, 3 FMSHRC at

812. 

33 Although the Court provides its own analysis of the credibility of the witnesses,

regarding Mr. Hamilton’s testimony at this moment, the Court subscribes to the analysis of that

witness’ credibility as set forth in Complainant’s Brief at pages 23, at paragraphs 120 through

129. The Complainant also spoke to the testimony of mechanic Christian and the subject of his

credibility. As part of its proposed findings of fact, it notes that the mechanic admitted that such

a wiring arrangement had associated risks and it observes that there is an invoice for electric

wire labor. The Court will speak to the subject of mechanic Christian’s credibility infra. 

34 As noted, Respondent elected not to file a Reply Brief. 

writing.32 Complainant’s Counsel recognizes that the Court stated that credibility determinations

would need to be made. In support of its contention that Mr. Hamilton lacked credibility, it

notes that while Mr. Hamilton testified that he did not make the determination to fire Fred

Estrada until he got home on the evening of October 2, Respondent’s Exhibit C-2, is both dated

and signed October 2nd. That means, Complainant observes, that either the document was

backdated or Mr. Hamilton was not truthful as to the date that the termination decision was

made. C’s Br. at 23. The Court agrees with this assessment but would add that independent of

that determination, it did not find Mr. Hamilton to be a credible witness on a variety of subjects,

including the time when he made the decision to fire Fred Estrada. Observing his demeanor on

the witness stand, along with Hamilton’s claim that he merely told Mr. Estrada to go home early

that day, apart from any decision to end his employment, that Court finds that claim is not

credible.33 

Complainant’s Brief concludes with the assertion that Runyan’s stated reason for

terminating Fred Estrada was pretextual. In this regard, it contends that Mr. Estrada did in fact

leave the keys with the truck on the one occasion when he was requested to do that and that the

basis to support that claim is simply that Fred Estrada’s relation of the events on that issue is the

more credible than Hamilton’s version. C’s Br. at 30-31. In further support of its claim that the

stated reason for dismissal was pretextual, it notes that the Complainant had no prior work

deficiencies identified by Runyan and that no warning was first provided, though it had a

warning document for discipline matters. In addition, while Mr. Hamilton claimed that Fred

Estrada disregarded anything he was asked to do that day, in fact Hamilton latter admitted that

leaving the keys with the truck was the only failure allegedly committed by him. Last, in this

regard, it notes that another employee was not fired, despite committing a more serious offense. 

C’s Br. at 31-33. 

The Complainant also filed a Reply Brief.34 To begin, Complainant’s Reply asks that the

Court adopt various statements made by Runyan in its post-hearing brief which were presented

as proposed findings of fact and to employ them as judicial admissions. C’s Reply at 2-3. 

36 FMSHRC Page 3179
35 The statements Complainant would employ against Runyan and the source in

Respondent’s post-hearing brief are: a. “During this conversation Mr. Estrada stated to Mr.

Hamilton, that when the truck was taken in it was not fixed right.” Proposed Findings, pg. 2, ¶4; 

b. “When Mr. Estrada walked out of the Conex box he stated to Mr. Hamilton, ‘Oh, by the way,

Todd, that truck—they took the truck in to be fixed, but it wasn’t fixed right.’” See id. at pg. 4,

¶12; c. “Mr. Estrada repeated that [ ] [the wiring] wasn’t fixed right.” See id. at pg. 4, ¶12; d.

“Mr. Estrada explained [to Mr. Hamilton] that yes it was working, but they did not fix it right...

.” See id. at pg. 4, ¶12; and e. “Mr. Estrada picked up the keys at the front desk and left them in

the truck.” See id. at pg. 6, ¶18. C’s Reply at 3.

36 Respondent’s Brief was not paginated. Page number references were added by the

Court.

However, as the Court independently finds each of the statements highlighted by Complainant’s

Counsel to be fact, apart from whether they are construed as admissions, the request need not be

ruled upon.35

Complainant also addresses Runyan’s motion for a directed verdict, a motion which,

Complainant notes, relies upon Fred Estrada’s statements at the hearing that he was fired for

failing to drop the keys off at the disabled truck. To this, Complainant repeats the claim made

earlier in its brief that Runyan had already made repeated admissions in its proposed findings

that Mr. Estrada engaged in protected activity. C’s Reply at 7, citing pages 1-3 of its reply. It

then notes that Mr. Estrada’s testimony also included repeated statements that he was fired for

informing Mr. Hamilton that the truck’s spare fuel pump had not been correctly repaired and as a

consequence was unsafe. It maintains that to the extent Mr. Estrada seemingly contradicted

himself about the reason for his firing, it is clear that he was voicing the reason Runyan was

claiming. As already noted, the Court has found that Mr. Estrada was not expressing his own

view for his firing, but rather the claim advanced by Runyan. As also noted, even if Mr. Estrada

were to believe that he was fired over the truck keys, his misapprehension of the reason would

not be determinative of the Court’s supported finding to the contrary and its determination of the

real reason for Runyan’s action. 

Runyan’s Contentions

Runyan begins the argument section of its post-hearing brief by renewing its motion for a

directed verdict. It emphasizes that Mr. Estrada testified that it was his understanding that he

was terminated “for not complying with a direct order from his superior Tod [sic] Hamilton.” 

R’s Br. at 8.36 As noted earlier, Respondent’s Counsel attempted to seal the door on Fred

Estrada’s testimony about Fred Estrada’s understanding of the reasons for his firing, by asking

if, during that hearing testimony, he was then under the influence of drugs or alcohol. Having

Mr. Estrada’s testimony that he was not then in such an altered state, Counsel believed that

testimony terminated the Complainant’s case. However, as the Court pointed out at the hearing

and reiterates here, the recounting and sole focus upon the Complainant’s testimony is seriously

misguided. A complainant’s understanding of the actual reason for his termination neither

makes nor breaks the complaint of discrimination. Rather, the facts, as determined by the Court,

36 FMSHRC Page 3180
37 The characterization that the wiring issue was “minute” is not based on any testimony

at the hearing to support it as such. 

38 As explained infra the Court found that neither Mr. Hamilton nor mechanic Christian

were credible witnesses. 

lead to the determination whether a given complainant engaged in protected activity and whether

the adverse action was motivated in any part by that activity. 

In addition, while Complainant Fred Estrada did utter those words about the reason for

his dismissal, that recounting only partially relates his view of the reason for his termination. At

the hearing itself, Fred Estrada subsequently made efforts to restate his understanding of the

reason for his termination, but long before that, in filing his original discrimination complaint, he

clearly recounted in his handwritten report of discrimination that the matter was all about the

pump on the spare gas tank and the associated wiring issue and how upset Mr. Hamilton became

with him when he had the temerity to speak up and inform Hamilton that, while the pump was

working, it had not been fixed correctly. Even in that handwritten discrimination report, Fred

Estrada began with the remark that “I was send Home for disobey a order,” but he then

continued with a recounting of the spare gas tank pump wiring issue. The Respondent has long

understood that the pump wiring was the real basis for Mr. Estrada’s complaint and its lame

attempt at the hearing to play “gotcha” based upon the complainant’s answers would reflect a

superficial and isolated reading of his complaint. Again, it is for the Court to decide, upon

hearing all of the testimony, whether there was protected activity and whether adverse action

flowed from it. 

In an apparent alternative to its directed verdict motion, the Respondent then contends

that Mr. Estrada failed to establish a prima facie case. For this portion of its Brief, Respondent

acknowledges that the Complainant alleges “he was really fired for reporting a minute wiring

issue for his work truck.”37 R’s Br. at 9. In this regard Respondent asserts “[w]hat is important

to point out is this is complaint [sic] he chose not to make for 11 days and continue [sic] to use

the truck.” Id. It adds that the mechanic, Mr. Christian, testified “that the vehicle was not in any

unsafe condition because of wiring.” Id. That claim is at odds with Mr. Christian’s testimony. 

In fact, Mr. Christian, near the end of his testimony, claimed that he never fixed the pump wiring

and that his repair invoice, he asserted, was for a “buggy whip light.” Therefore, even if the

Court were to accept the mechanic’s testimony as credible,38 Respondent can hardly point to the

mechanic’s testimony to support that the pump wiring arrangement was safe. According to

some, but not all of mechanic Christian’s testimony, he knew not of the pump wiring issue,

despite having an invoice for “Elec. Wire Labor” at the same time as the pump wiring issue had

been raised by Fred Estrada, which invoice was signed by Viola Ogas, the person to whom Fred

Estrada advised about the pump wiring issue. 

In a similar fashion, Respondent mischaracterizes Mr. Estrada’s testimony when

asserting that his “testimony is important to point out here as it is clear he understood it not to be

a safety issue that was important enough for him to stop using the vehicle.” R’s Br. at 10. 

Viewed in its entirety, as recounted supra, Mr. Estrada’s testimony contradicts that

characterization. 

36 FMSHRC Page 3181
Respondent concludes that Fred Estrada failed to make a prima facie case of

discrimination. R’s Br. at 12. To support this contention, Runyan focuses on its claim that Fred

Estrada was fired for failing to obey the direct order from Hamilton. It is noted here that

nowhere in its brief does Respondent formally make any alternative claim that, even if it were

found that Runyan discriminated against Mr. Estrada, it affirmatively defends its action through

showing that it was also motivated by his unprotected activity and would have taken that adverse

action for such unprotected activity alone. Sec. obo Robinette v. United Castle Coal Co., 3

FMSHRC 803, 817-818. Thus, Respondent, through its legal counsel, did not expressly so

affirmatively defend. It would seem that, since Runyan was represented by legal counsel, its

failure to expressly assert any affirmative defense, waived such a claim. However, because it

could be inferred that Runyan’s claim that it dismissed Mr. Estrada because he disobeyed a

direct order (i.e. the alleged failure to leave the keys in the truck) was tantamount to an

affirmative defense, the Court, as explained below, rejects any claim that Runyan had a

legitimate, non-discriminatory, basis to dismiss the Complainant. 

The basic elements of discrimination actions

As the Commission recently reiterated in Mark Gray v. North Fork Coal Corporation,

2013 WL 4648492, (August 22, 2013) a “complainant alleging discrimination under the Mine

Act establishes a prima facie case of prohibited discrimination by presenting evidence sufficient

to support a conclusion that the individual engaged in protected activity and that the adverse

action complained of was motivated in any part by that activity. See Turner v. Nat'l Cement Co.

of California, 33 FMSHRC 1059, 1064-67 (May 2011); Sec'y on behalf of Pasula v.

Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds 663 F.2d

1211 (3d Cir. 1981); Sec'y on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803,

817-18 (Apr. 1981). The operator may rebut the prima facie case by showing either that no

protected activity occurred or that the adverse action was in no part motivated by protected

activity. See Robinette, 3 FMSHRC at 818 n.20. If the operator cannot rebut the prima facie case

in this manner, it nevertheless may defend affirmatively by proving that it also was motivated by

the miner's unprotected activity and would have taken the adverse action for the unprotected

activity alone. See id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal

Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4th Cir. 1987) (applying Pasula-Robinette test).”

Analysis, Further Findings of Fact and Conclusions of law

Upon the close of the testimony at the hearing, the Court noted that “this case is going to

turn on credibility determinations primarily. It also advised that, upon hearing the testimony, it

had made “certain more-than-preliminary conclusions about the credibility of various

witnesses.” Tr. 223. As should be clear from the foregoing, the Court found that neither Mr.

Hamilton nor mechanic Christian were credible witnesses. Their testimony followed an oath in

which they swore to tell the truth. That did not occur. In contrast, Mr. Fred Estrada was quite

credible. 

36 FMSHRC Page 3182
fact, as set forth above, already makes it clear that Mr. Fred Estrada established his

discrimination complaint, only a summary analysis is necessary now. As just noted, of the three

witnesses at the hearing, only one, Fred Estrada, provided credible testimony. When Mr. Estrada

returned to work on September 29th, he learned that Ms. Ogas had attempted to have the pump

wire fixed on September 26th but that it had not been properly repaired. On October 1st the

triggering event occurred when Mr. Hamilton, obviously irritated about the pump wire repair

issue, attempted to show Mr. Estrada that it had been fixed. Though the pump worked, Mr.

Estrada showed up Mr. Hamilton by explaining that the “repair,” if it could even be called such,

had been inadequate. Mr. Estrada’s testimony about the exchange between him and Hamilton is

found to be credible. Hamilton was clearly angry over Mr. Estrada’s accurate assessment that

the pump wire had not been properly repaired. Mr. Hamilton’s claim that he never had an

exchange with Mr. Estrada about the pump wire is not believable, nor is his claim that he never

had angry words with the Complainant. The following day, despite mechanic Christian’s

protestation to the contrary, the pump wire was correctly fixed by him with the installation of a

new fuse in the wire’s line. Thus, Mr. Estrada clearly engaged in protected activity and his

firing, shortly thereafter, was motivated by that activity. 

A few words should be added about the claim that Mr. Estrada was fired for failing to

leave the truck keys in the disabled truck. First, the whole claim about this does not add up. 

If believed, and he is not, Mr. Hamilton’s Herculean efforts, repeatedly contacting Mr. Estrada to

“please” put the keys in the disabled pickup were disproportionate to the problem. One would

think, by this accounting, that this was the most important task of the day. Thus, by Hamilton’s

telling, the urgency of the task was akin to responding to a four-alarm fire. This was hardly the

case, as the backup truck was available and used by Mr. Estrada the same day. And, of course,

the front gate, where Mr. Estrada initially left the pickup’s keys was all of two (2) miles away

from the conex box. Even hypothetically viewing the truck key issue in the very darkest

construction possible against Mr. Estrada, at most, there was a simple communication mix-up as

to where Mr. Estrada was to leave the keys, and his initial depositing of them at the front gate

was both entirely reasonable and consistent with Runyan’s usual practices. That Mr. Estrada

could be fired for such a minuscule communication error, for which the blame could be spread

among many, is not at all believable. 

Because the foregoing lengthy recounting of the hearing testimony and the findings of

36 FMSHRC Page 3183
39 Complainant’s post-hearing brief also addressed the subjects typically included for the

relief aspects of established discrimination claims. In this regard it lists the following: “1.

Expunge from Mr. Estrada's personnel file any negative references relating to this matter. 2.

Reimburse Mr. Estrada for all reasonable and related economic losses or expenses incurred in

the institution and litigation of this case. This amount shall include damages in an amount equal

to full backpay, all employment benefits, attorneys' fees and costs, all medical and hospital

expenses and any and all other damages suffered and incurred by Complainant as a result of his

discriminatory discharge. Furthermore, interest shall be added to backpay and other expenses,

from the date of discharge until the date of payment, at the adjusted prime rate announced semiannually by the Internal Revenue Service. 3. Post this decision at all of its mining properties in

conspicuous, unobstructed, places where notices to employees are customarily posted, for a

period of 60 days. 4. Restore Mr. Estrada to his former position as a bird hazer or to a similar

position, at the same rate of pay, same shift assignment, and with the same or equivalent

duties.” It also addressed the procedural aspects related to determining if an agreement can be

reached on these issues, adding that if “an agreement cannot be reached, the parties are . . . to

submit their respective positions, concerning those issues on which they cannot agree, with

supporting arguments, case citations and references to the record . . . [ and] [f]or those areas

involving monetary damages on which the Parties disagree, they shall submit specific proposed

dollar amounts for each category of relief. If a further hearing is required on the remedial aspects

of this case, the Parties should so state.” C’s Br. at 33-34. The Court views this as a reasonable

outline for the parties to use in their discussions. 

ORDER

The parties are directed to confer in order to determine if there can be agreement as to the

terms of relief for Mr. Fred Estrada. Section 105(c)(3) of the Act provides, in pertinent part:

Whenever an order is issued sustaining the complainant's charges under this subsection, a sum

equal to the aggregate amount of all costs and expenses (including attorney's fees) as determined

by the Commission to have been reasonably incurred by the miner ... for, or in connection with,

the institution and prosecution of such proceedings shall be assessed against the person

committing such violation.” Some issues related to the relief were raised by Complainant’s

Counsel in its post-hearing brief.39 Typically, reinstatement to Mr. Estrada’s former position, if

sought, back pay with an appropriate interest rate, medical expenses, if any, benefits, such as

pension contributions, if any, and lost overtime, are among the remedial matters that may be

present. In addition, the remedies typically also include: expungement from Fred Estrada’s

personnel file of all references to the unlawful disciplinary action taken against him, including

any such references to the events and circumstances associated with his wrongful termination

from any other records maintained by the company; and a posting of this decision at all of its

mining properties where Runyan operates, placed in conspicuous, unobstructed places where

notices to employees are customarily posted, for a period of 60 days, together with a posting by

Runyan at such properties that it will not violate the Mine Act. 

36 FMSHRC Page 3184
40 Commission Rule 44(b), 29 C.F.R. § 2700.44(b), provides that the Judge shall notify

the Secretary in writing immediately after sustaining a discrimination complaint brought by a

miner pursuant to section 105(c)(3) of the Act. Consequently, the Secretary shall be provided

with a copy of this decision so that she may file a petition for assessment of civil penalty with

this Commission.

The Court retains jurisdiction in this matter until the specific remedies to which Mr.

Estrada is entitled are resolved and finalized. Following the issuance of the final order, this case

will be referred to MSHA for assessment of a civil penalty.40 Accordingly, this decision will not

become final, and therefore not appealable, until an order granting specific relief and awarding

monetary damages has been entered. Counsel are directed to discuss the issues of the

appropriate relief and to report the results of their discussions in writing to the Court within 20

calendar days of the date of this order.

So Ordered.

/s/ William B. Moran

William B. Moran

Administrative Law Judge 

Distribution:

Fred Estrada, P.O. Box 404, Tyrone, New Mexico 88064

David Estrada, 3861 East New Berry Ave. SE, Mesa, AZ 85206

Ben Furth, Esq., The Furth Law Firm, P.A., The Furth Building, 780 South Walnut #5, Las

Cruces, NM 88001

Kristin R.B. White, Esq., Michelle Witter, Esq., Jackson Kelly, PLLC, 1099 18th Street, Suite

2150, Denver, CO 80202

Runyan Construction Inc., P. O. Box 2827 Silver City, NM 88062

Runyan Construction Inc., 12 Truck By Pass Rd, Silver City, New Mexico 88061

Nathan Gonzales, Esq., Gonzales Law, 925 N. Hudson, Silver City, New Mexico 88061

nathan@gonzaleslaw.us

/cts

36 FMSHRC Page 3185
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9900 / FAX: 202-434-9949 

September 15, 2014 

 

DECISION AND ORDER

Appearances: Andy Carson, Esq., Marble Falls, TX, for the Applicant 

 Amy S. Hairston, Esq., U.S. Department of Labor, Office of the Solicitor, 

Dallas, TX, for the Respondent 

Before: Judge Rae 

 This case is before me upon an application for an award of legal fees and expenses filed 

under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504, and the implementing regulations 

published in 29 C.F.R. Part 2704. Cactus Canyon Quarries, Inc. filed the application against the 

U.S. Department of Labor’s Mine Safety and Health Administration (MSHA). Cactus Canyon 

seeks to recover $11,250 in costs expended in defending itself against the violations alleged in 

Docket No. CENT 2013-639-M, which was dismissed by unpublished Order dated June 16, 

2014. 

 For the reasons that follow, I find that Cactus Canyon is not entitled to an EAJA award. 

BACKGROUND 

On May 20, 2013, former MSHA Inspector Michael Sonney conducted an inspection of 

Cactus Canyon’s mine and issued seven citations under section 104(a) of the Federal Mine 

Safety and Health Act of 1977 (the Mine Act), 30 U.S.C. § 815(a). One citation alleged unsafe 

storage of compressed gas cylinders in contravention of 30 C.F.R. § 56.4601. Another alleged 

failure to maintain a material safety data sheet (MSDS) for two hazardous chemicals in 

contravention of 30 C.F.R. § 47.51. The other five citations alleged failure to properly guard 

moving machine parts in contravention of 30 C.F.R. § 56.14107(b). Cactus Canyon’s president 

and attorney, Andy Carson, asserts that the supervisor for MSHA’s San Antonio field office, 

Jerry Anguiano, visited the mine the day after the inspection – as was his custom – to review the 

CACTUS CANYON QUARRIES, INC., 

 Applicant 

 v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent 

 EQUAL ACCESS TO JUSTICE 

 PROCEEDING 

Docket No. EAJA 2014-1-M 

Formerly CENT 2013-639-M 

A.C. No. 41-00009-327753 

Mine: Fairland Plant and Quarries 

36 FMSHRC Page 3186
inspection and assist with corrective action and termination of the citations. Applicant’s Reply 

Br., Ex. 1, Decl. of Andy Carson, Aug. 12, 2014. 

 

On August 15, 2013, the Secretary of Labor petitioned the Federal Mine Safety and 

Health Review Commission for assessment of a total penalty of $700 for the seven citations at 

issue in the docket, Docket No. CENT 2013-639-M. The petition was filed by one of MSHA’s 

Conference and Litigation Representatives (CLRs) who works out of Dallas. Mary Kathryn 

Cobb, the attorney who supervises all MSHA litigation at the Dallas Solicitor’s Office, attests 

that she also reviewed the citations at the outset of the litigation and determined they were 

supported by the law and the evidence in the file. Sec’y’s Answer, Ex. B, Decl. of Mary Kathryn 

Cobb, Aug. 1, 2014. Cactus Canyon timely filed a notice of contest. 

 By letter transmitted August 19, 2013, Cactus Canyon requested that the matter be 

designated for simplified proceedings pursuant to the Commission’s rules of procedure at 30 

C.F.R. § 2700 Subpart J. On August 27, 2013, Solicitor Dolores Wolfe transmitted a notice of 

appearance on behalf of the Secretary. The next day, she filed an unopposed motion seeking 

additional time to respond to the request for simplified proceedings and pursue settlement, noting 

that her office had just received the file from MSHA and that a phone call with Andy Carson had 

revealed a need for additional time to evaluate the file. Wolfe attests that during several phone 

conversations with Carson in late August and early September, “it became clear that Mr. 

Carson’s goal was not to settle this matter, but rather to get the Secretary to stipulate to his own 

interpretations of MSHA regulations, in what appeared to be an attempt to limit MSHA’s ability 

to cite violations at his mine in the future.” Sec’y’s Answer, Ex. C, Decl. of Dolores G. Wolfe, 

July 31, 2014. On September 26, 2013, attorney Wolfe filed a document styled “Secretary’s 

Opposition to Simplified Proceedings” that stated: 

This case involves complex and contested issues of fact and law on seven 

citations. If this case proceeds to hearing, it will take more than 1 day to present 

evidence. 

The parties are in dispute over a number of contested facts including whether the 

mine was in operation on the day of the inspection, whether five of the guarding 

citations involve moving parts that are less than seven feet away from walking or 

working surfaces, and whether the mine had an MSDS for each hazardous 

chemical that they use. The Secretary would like to conduct written discovery ... 

The Secretary respectfully requests that the request for Simplified Proceeding be 

denied, and written discovery be allowed. 

Contrary to Wolfe’s explanation, Carson asserts that Wolfe opposed simplified 

proceedings because she was aware that discovery would be necessary since Inspector Sonney 

was no longer available for the hearing. Decl. of Andy Carson. Carson attests that MSHA and 

its counsel knew Inspector Sonney was unavailable before litigation commenced, and introduced 

an MSHA organizational chart purporting to show Sonney was “gone by August 1, 2013.” Id.; 

Applicant’s Reply Br., Ex. 3, organizational chart (undated). Regardless of the reasons for the 

Secretary’s opposition, no action was taken on the request for simplified proceedings, as the case 

was still pending before the Office of Administrative Law Judges in unassigned status. 

36 FMSHRC Page 3187
On April 1, 2014, the case was assigned to me. Cactus Canyon subsequently renewed its 

request for simplified proceedings by email correspondence1

 with my office, noting there was 

“no current necessity for Discovery.”2 Solicitor Virginia Fritchey, who had filed a notice of 

substitution as counsel for the Secretary in December 2013, notified my office on May 7, 2014 

that the Secretary had withdrawn any objections to the request for simplified proceedings. 

Accordingly, I granted the request for simplified proceedings by order dated May 8, 2014. 

Meanwhile, on April 16, 2014, Fritchey had called Carson and sent him an email 

requesting a settlement position. Sec’y’s Answer, Ex. D, Decl. of Virginia E. Fritchey, Aug. 6, 

2014. However, she asserts that the next day, she learned that Inspector Sonney no longer 

worked for the agency and no other MSHA representatives had been present at the inspection or 

witnessed the violations. Id. On April 18, 2014, MSHA supervising attorney Cobb discussed 

the case with the MSHA District Director. Decl. of Mary Kathryn Cobb. After they discussed 

“the unavailability of the MSHA inspector who conducted the inspection ... or any other MSHA 

representatives to testify on behalf of the agency,” the District Director advised Cobb’s office to 

pursue an amicable resolution with Cactus Canyon. Id. 

Fritchey asserts that she contacted Carson again on May 7, 2014 and attempted to engage 

in settlement discussions. Decl. of Virginia E. Fritchey. On May 15, 2014, Fritchey sent an 

email to my office stating that the Secretary had made multiple efforts to contact Cactus Canyon, 

but had not received a settlement offer or confirmation that the operator was interested in 

settlement. Carson responded by email on May 21, 2014. Carson contended that he had 

communicated with the CLR, attorney Wolfe, and attorney Fritchey, none of whom seemed to 

have any of their predecessor’s notes. Although he had “made the same specific settlement offer 

on at least 3 occasions,” he contended that the Secretary had not taken a clear position on the 

matter. Fritchey asserts that Carson’s email made clear he would not agree to any settlement 

unless it included stipulations incorporating his own interpretations of MSHA regulations 30 

C.F.R. § 47.51 and § 56.14107(b) (pertaining to MSDSs and guarding violations), which were 

“unacceptable to MSHA.” Decl. of Virginia E. Fritchey. Fritchey spoke to the MSHA District 

Director and recommended vacating all the citations due to Sonney’s unavailability for hearing 

and her belief that further settlement negotiations would be unproductive. Id. 

On June 2, 2014, Fritchey filed a motion stating that the Secretary had vacated the 

citations and unilaterally requesting dismissal of the case. In response, on June 5, 2014, Carson 

filed a Motion for Judgment requesting that I enter specific findings, dismiss five of the citations, 

modify the sixth, and leave the seventh as issued.3

 In subsequent correspondence with this 

1

 To avoid ex parte communications, all email correspondence to and from my office was 

copied to the representatives for both parties. 

2

 The email, which was transmitted on April 16, 2014, further explained, “Respondent is 

very familiar with Simplified Proceedings because the Secretary requested Simplified 

Proceedings in Respondent’s last 2 contested cases. . . . [I]t seemed appropriate here because 

Respondent needs no discovery and the Secretary never seems to need Discovery.” 

3

 Specifically, Carson requested an order entering the following finding: “Respondent has 

in place an effective and observed policy, practice, and procedure to not allow access to any area 

(continued...) 

36 FMSHRC Page 3188
office, Carson indicated that Cactus Canyon opposed dismissal because the company had been 

asked to waive its EAJA rights; because the Secretary’s motion to dismiss suggested that 

dismissal would not affect the Secretary’s interpretation of the mandatory safety standards or 

their applicability to the operator; and because of related concerns that the dismissal would be 

without prejudice to the Secretary, permitting the Secretary to reassert the same position in the 

future. Solicitor Fritchey responded that the dismissal would be a final decision and offered to 

delete the objectionable language regarding the interpretation of the safety standards if Cactus 

Canyon would join in the motion to dismiss. However, Carson declined to accept these terms. 

In an email transmitted June 13, 2014, he argued that the Secretary’s motion to dismiss 

amounted to a settlement motion and stated: 

If this is a settlement, then the Court is required to review the settlement under 

§110(k) of the Mine Act. There is no settlement offered, except that the Secretary

may join in Respondent’s Motion for Judgment and the Court could review the 

Motion. . . . Respondent objects to the Secretary’s Motion and Order of Dismissal 

current before the Court. The words “WITH PREJUDICE TO THE 

SECRETARY” must be added after the word “DISMISSED” if the Court is 

inclined to sign the Order of Dismissal. . . . If the Dismissal is granted and 

Respondent’s Motion for Judgement and with attached Judgement [sic] are not 

entered, then Respondent will be filing an Equal Access to Justice Act filing in 

this same Court for the extensive legal time spent communicating, researching, 

and responding to the numerous representatives of the Secretary. This claim is 

not settled or waived. Agreeing to the Dismissal would appear to give the 

Secretary the substantial justification that it loses with a Dismissal. 

Perhaps we need a hearing with the Court on these conflicting motions and 

objections. Perhaps the Secretary should embrace the Respondent’s Motion for 

Judgment, which will serve the health and safety of the miners and avoid the slam 

dunk attorney’s fees claim. 

On June 16, 2014, I denied Cactus Canyon’s Motion for Judgment and dismissed the 

proceedings, recognizing the Secretary’s unfettered discretion to vacate citations. See RBK 

Constr., Inc., 15 FMSHRC 2099 (1993). 

3

 (...continued) 

 required to be guarded under § 56.14107(a) [the guarding standard under which five of the 

citations were issued] during operations. Respondent always de-energises [sic] the systems 

before access to any area required to be guarded.” On the basis of this proposed finding, Carson 

requested that I reduce the gravity and negligence of one of the guarding citations. He requested 

dismissal of the other four guarding citations on grounds that each pertained to machine parts 

that would be inaccessible to miners because they were more than seven feet off the ground. 

Carson further requested dismissal of the citation that alleged Cactus Canyon did not have 

material safety data sheets (MSDSs) on hand for two chemicals. Carson premised this request on 

his position that the mandatory safety standards do not require brand-specific MSDSs. Carson 

did not request any modifications of the citation that alleged unsafe storage of gas cylinders. 

36 FMSHRC Page 3189
Cactus Canyon subsequently filed an EAJA application on July 2, 2014 requesting 

$11,250 for legal fees expended in defending itself against the $700 penalty assessment and 

preparing the EAJA application. The Secretary timely filed an Answer4

 and Cactus Canyon 

timely filed a Reply, which requested an additional $2,500 for preparing the reply brief. Because 

the matter was fully briefed at this juncture, I denied the Secretary’s subsequent motion for leave 

to file a Sur-Reply and declined to consider the additional written arguments submitted by both 

of the parties. 

DISCUSSION

Congress passed the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504, to ensure that 

certain eligible individuals and small organizations would not be deterred from seeking review of 

or defending against unjustified governmental action because of the expense involved in securing 

vindication of their rights. Rushton Mining Co., 11 FMSHRC 759, 766 (May 1989). The EAJA, 

as implemented by the Commission in 29 C.F.R. Part 2704, permits an award of attorney fees 

and other expenses to an eligible party that prevails in an adversary adjudication against MSHA 

“unless the Secretary of Labor’s position in the proceeding was substantially justified or special 

circumstances make an award unjust.” 29 C.F.R. § 2704.100. Thus, one of the threshold 

eligibility requirements for an EAJA award is that the applicant must have been a prevailing 

party in the underlying litigation.5

 The Secretary contends Cactus Canyon is not a prevailing party within the meaning of 

the EAJA because the underlying citations were vacated without a decision or agreement on the 

merits. Sec’y’s Answer at 4-7. “Prevailing party” is a legal term of art referring to a “party in 

4

 Cactus Canyon argues the Secretary’s Answer was filed late. Applicant’s Reply Br. at 

1. However, the Answer was timely filed pursuant to 29 C.F.R. § 2700.8(b), which extended the

due date by five days because the EAJA application was served by “a method of delivery 

resulting in other than same-day service” (namely, by mail). 

 Cactus Canyon also objects to the Secretary’s filing of an amended Answer the next 

day. Applicant’s Reply Br. at 1. However, the sole amendment to the Answer was that 

Fritchey’s attached declaration was changed to reflect that Inspector Sonney had not been fired 

from MSHA, but was no longer working for MSHA. The Secretary stated that this distinction is 

not relevant to the issue of Cactus Canyon’s entitlement to an EAJA award. I agree. I find that 

the Secretary’s amendment of the Answer was permissible because it did not affect the relevant 

substance of the Answer and carried no risk of prejudice to Cactus Canyon. I further reject as 

meritless Cactus Canyon’s characterization of the Secretary’s request to substitute the amended 

Answer as a “request to Destroy Evidence.” Applicant’s Reply Br. at 2. I also note that Cactus 

Canyon itself submitted an amended EAJA application (Carson’s signature had been omitted 

from the original) in the very same filing in which it objected to the Secretary’s attempt to amend 

the Answer, which was somewhat hypocritical on Cactus Canyon’s part.

5

 A non-prevailing party can recover fees under § 2704.105(b) when the “demand of the 

Secretary is substantially in excess of the decision of the Commission and is unreasonable when 

compared with such decision.” This provision is inapplicable here, as Cactus Canyon has not 

alleged an excessive demand and no decision was issued. 

36 FMSHRC Page 3190
whose favor a judgment is rendered.” Buckhannon Board & Care Home, Inc. v. W. Va. Dept. of 

Health & Human Res., 532 U.S. 598, 603 (2001) (citing Black’s Law Dictionary). 

The Federal Mine Safety and Health Review Commission has not directly addressed what 

defines a prevailing party or whether a party prevails within the meaning of the EAJA when the 

underlying case was dismissed without a decision on the merits. The Commission was presented 

with such a case in Black Diamond Constr., Inc., 21 FMSHRC 1188 (Nov. 1999). In that case, 

the Secretary had initially imposed a small penalty for two violations, but settlement negotiations 

were unsuccessful, so the parties engaged in discovery and pre-trial preparation. The day before 

the hearing, the Secretary vacated the violations due to a dispute within MSHA over the legal 

basis for the violations. 21 FMSHRC at 1192. In the ensuing EAJA proceeding, the 

Commission did not expressly discuss why Black Diamond constituted a prevailing party. The 

Commission merely described the lack of justification for the Secretary’s position and awarded 

fees on grounds that MSHA’s pre-litigation conduct, including its failure to recognize the 

internal agency dispute earlier in the proceedings, did not justify forcing Black Diamond to 

shoulder the considerable costs of trial preparation. Id. at 1197-8. Thus, the Black Diamond 

decision suggested that an operator can achieve prevailing party status when the Secretary 

voluntarily vacates a citation after the operator has incurred considerable pre-litigation costs. See 

also McLaughlin v. Sec’y of Labor, 18 FMSHRC 2073 (Nov. 1996) (ALJ ) (finding without 

discussion that EAJA applicant was prevailing party when Secretary had dismissed section 

110(c) case against him after a hearing had been held). 

Two years later, the Supreme Court issued a landmark ruling on the definition of 

“prevailing party.” Buckhannon, 532 U.S. 598 (2001). Before Buckhannon, courts had routinely 

awarded attorney fees under the “catalyst theory,” which confers prevailing party status when a 

plaintiff’s lawsuit spurs the defendant to voluntarily change its conduct. Id. at 601-2. In 

Buckhannon, the Court rejected the catalyst theory and held that the types of case dispositions 

that give rise to prevailing party status are (1) an enforceable judgment on the merits, or (2) a 

court-ordered consent decree evincing judicial imprimatur of a material alteration in the parties’ 

legal relationship. Id. at 603-4; see also Aronov v. Chertoff, 562 F.3d 84, 90-1 (1st Cir. 2009) 

(en banc) (explaining that a consent decree that meets the Buckhannon standard must be courtordered and must provide for judicial oversight and enforcement). Although Buckhannon was 

litigated under the fee-shifting provision of the Civil Rights Act, the rule it enunciated has been 

applied to EAJA cases by all of the federal circuits that have considered the matter. Jeroski d/b/a 

USA Cleaning Serv. & Bldg. Maint. v. FMSHRC, 697 F.3d 651, 653 (7th Cir. 2012), aff’g 33 

FMSHRC 2264 (Sept. 2011) (ALJ). See, for example, Castaneda-Castillo v. Holder, 723 F.3d 

48, 57 (1st Cir. 2013); Iqbal v. Holder, 693 F.3d 1189, 1193-4 (10th Cir. 2012); Green Aviation 

Mgmt. Co. v. FAA, 676 F.3d 200, 202-3 (D.C. Cir. 2012); Turner v. Nat’l Transp. Safety Bd., 608 

F.3d 12, 16 (D.C. Cir. 2010); United States v. Milner, 583 F.3d 1174, 1196-7 (9th Cir. 2009); 

Aronov, 562 F.3d at 89; Ma v. Chertoff, 547 F.3d 342 (2d Cir. 2008) (per curiam); Biodiversity 

Conservation Alliance v. Stem, 519 F.3d 1226, 1230 (10th Cir. 2008); Li v. Keisler, 505 F.3d 913 

(9th Cir. 2007); Morillo-Cedron v. Dist. Dir. for U.S. Citizenship & Immigration Servs., 452 

F.3d 1254, 1257-8 (11th Cir. 2006); Goldstein v. Moatz, 445 F.3d 747, 751 (4th Cir. 2006); 

Marshall v. Comm’r of Soc. Sec., 444 F.3d 837, 840 (6th Cir. 2006); Vacchio v. Ashcroft, 404 

F.3d 663, 673 (2d Cir. 2005); Thomas v. Nat’l Sci. Found., 330 F.3d 486, 492 n.1 (D.C. Cir. 

36 FMSHRC Page 3191
2003); Brickwood Contractors v. United States, 288 F.3d 1371, 1379 (Fed. Cir. 2002); and 

Perez-Arellano v. Smith, 279 F.3d 791, 795 (9th Cir. 2002).6

 

Thus, the prevailing rule in the federal courts is that the government’s voluntary dismissal 

of a claim against a party does not confer prevailing party status under the EAJA. Cactus 

Canyon argues that it is a prevailing party despite Buckhannon and its progeny because, unlike in 

the majority of these cases, it achieved financial instead of equitable relief through the dismissal 

of the penalty proceedings. However, I find that this distinction is not relevant. Monetary and 

equitable relief are both forms of relief that can materially alter the parties’ relationship, and thus 

both have the potential to satisfy Buckhannon’s prevailing party test. 

As noted above, the Commission has not expressly addressed the definition of a 

prevailing party or adopted Buckhannon, but five administrative law judge decisions from 

FMSHRC have discussed the meaning of “prevailing party” in the wake of Buckhannon in 

various contexts. North County Sand & Gravel, Inc., 36 FMSHRC 1214 (May 2014) (ALJ) 

(applicant was prevailing party after decision on merits); Signature Mining Servs., LLC, 35 

FMSHRC 3540 (Dec. 2013) (ALJ) (applicant was prevailing party when judge reviewed and 

approved terms of settlement, which included Secretary’s agreement to vacate one violation);

Left Fork Mining Co., 34 FMSHRC 2311 (Aug. 2012) (ALJ) (applicant was prevailing party 

when judge decided to vacate 104(b) order after holding hearing); Sand Products, LLC, 34 

FMSHRC 1224 (May 2012) (ALJ) (applicant was not prevailing party when Secretary vacated 

citations); USA Cleaning Serv. & Bldg. Maint., 33 FMSHRC 2264 (Sept. 2011) (ALJ) (applicant 

was not prevailing party when Secretary vacated contested order one week after it was 

contested), aff’d sub nom. Jeroski d/b/a USA Cleaning Serv. & Bldg. Maint. v. FMSHRC, 697 

F.3d 651 (7th Cir. 2012). Three are relevant here. 

In Sand Products, a mine operator sought an EAJA award after entering into a courtapproved settlement agreement in which some citations were modified, some were paid as 

 6 But see Kholyavskiy v. Schlecht, 479 F. Supp. 2d 897 (E.D. Wis. 2007). In that case, the 

District Judge acknowledged other circuits’ application of Buckhannon in the EAJA context, but 

concluded on his own analysis that Buckhannon should not be applied. In his view, the EAJA 

stands alone among the federal fee-shifting statutes in that its purpose is not solely to encourage 

vindication of parties’ rights, but is also to discourage government overreach. 479 F. Supp. 2d at 

906-7. Characterizing the EAJA as an “anti-bullying” statute, he stated that barring EAJA 

awards where the government has voluntarily dismissed a case could permit the government to 

initiate and vigorously litigate unjustified actions for mischievous purposes and then avoid 

paying the other side’s attorney fees by nonsuiting before a decision is reached on the merits. Id.

at 906-7. However, this opinion was effectively overruled by the Seventh Circuit’s decision in 

Jeroski. Moreover, there is no evidence that the concerns cited in Kholyavskiy have come into 

play in this case. This case involved minor safety violations that are routinely cited by MSHA, 

and the citations on their face provide substantial justification for the Secretary’s actions in 

initiating the litigation. There is no indication of government overreach or mischievous purposes 

such as harassment, nor is it at all apparent that MSHA litigated the claim vigorously such as 

would have burdened the operator with the high cost of defending himself, as MSHA did not 

conduct discovery or prepare for a hearing and in fact appears to have let the case sit for about 

six months without taking any action on it. 

36 FMSHRC Page 3192
assessed, and some were dismissed because the Secretary had vacated them. The judge found 

that the operator was not a prevailing party as to the vacated citations because there was no 

judicial relief on the merits for these citations. 34 FMSHRC at 1227. The judge explained that 

because he had no authority to review the Secretary’s decision to vacate a citation, his dismissal 

of the citations in question was a procedural rather than substantive function. Id. 

In USA Cleaning, a mine operator sought an EAJA award when the Secretary had 

vacated the contested order ten days after it was issued, before litigation had commenced. The 

judge first noted that the Commission’s decision in Black Diamond suggested a judgment on the 

merits was not a necessary prerequisite to an EAJA award, but stated he was wary of concluding 

the Commission intended to confer prevailing party status when the Secretary promptly vacated 

the underlying violations. 33 FMSHRC at 2266. The judge went on to find that, regardless of 

Black Diamond, the Supreme Court’s subsequent Buckhannon decision and its adoption by the 

D.C. Circuit supported a finding that the mine operator was not a prevailing party because a 

dismissal confers no judicial relief and does not change the relationship between the parties. Id. 

at 2266-7 (citing Turner v. Nat’l Transp. Safety Bd., 608 F.3d 12 (D.C. Cir 2010)). Thus, the 

judge agreed with the finding in Sand Products that dismissing a case does not confer any relief 

on the merits when the EAJA applicant has already achieved relief through an unreviewable act 

of prosecutorial discretion. The judge’s decision was upheld by the Seventh Circuit. 

In Signature Mining Servs., a mine operator sought an EAJA award after entering into a 

settlement agreement in which the Secretary agreed to vacate one order in exchange for the 

operator’s withdrawing its contest of another. 35 FMSHRC at 3542. The judge considered these 

settlement terms when he considered and approved the operator’s motion to withdraw. Id. After 

discussing the legal background of the prevailing party issue in detail, he concluded, “the 

‘critical fact’ becomes the level of discretion a judge exercises in permitting parties to carry out 

the finalized terms of a settlement. . . . Therefore, an EAJA plaintiff achieves the functional 

equivalent of a consent decree in Commission proceedings where a judge substantively reviews 

settlement terms . . . and conditions the issuance of a dispositive order on the parties’ decision to 

be bound by the terms.” Id. at 3545-6. 

All of these cases support a finding that Cactus Canyon Quarries was not a prevailing 

party within the meaning of the EAJA. My dismissal of the citations in the underlying 

proceedings did not indicate judicial consideration, oversight, and approval, and was not an 

exercise of judicial discretion that provided court-ordered relief on the merits of the case. 

Rather, the dismissal was a judicial recognition that the issues at hand had been mooted by the 

Secretary’s grant of relief in exercising his prosecutorial discretion to vacate the citations. 

Although Black Diamond would suggest a different result, the instant case can be distinguished. 

In Black Diamond, the citations were vacated the day before the hearing after considerable 

discovery and trial preparation had taken place, and MSHA essentially recognized it had dropped 

the case at the last minute because its legal theory was not solid. 21 FMSHRC at 1192. In this 

case, by contrast, the citations were vacated before the costly and time-consuming processes of 

discovery and trial preparation had begun, and for reasons unrelated to the merits of the case, 

namely, MSHA’s inability to find witnesses. 

36 FMSHRC Page 3193
After considering all the points discussed above, I find that Cactus Canyon Quarries was 

not a prevailing party in the underlying proceedings and is not entitled to an EAJA award. 

ORDER 

 It is ORDERED that Cactus Canyon Quarries’ application for an award of legal fees 

under the Equal Access to Justice Act is DENIED. 

 /s/ Priscilla M. Rae

 Priscilla M. Rae 

 Administrative Law Judge 

Distribution: 

Amy S. Hairston, Esq., U.S. Department of Labor, Office of the Solicitor, 525 S. Griffin Street, 

Suite 501, Dallas, TX 75202 

Andy Carson, Esq., 7232 Co. Road 120, Marble Falls, TX 78654 

 

36 FMSHRC Page 3194
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-928-8689 

DECISION AND ORDER

Appearances: Joseph B. Luckett, Esq., U.S Department of Labor, Office of the Solicitor, 

Nashville, TN for the Secretary 

John M. Williams, Esq., Rajkovich, Williams, Kilpatrick &True, PLLC, 

Lexington, KY for Respondent 

Before: Judge Andrews 

STATEMENT OF THE CASE 

This case is before the undersigned Administrative Law Judge on a Petition for 

Assessment of Civil Penalty filed by the Secretary of Labor against Respondent, Rex Coal 

Company, Inc. (“Respondent” or “Rex”) pursuant to Section 104 of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §815(d). A hearing was held in London, KY on April 10, 2014. 

PROCEDURAL HISTORY 

On November 23, 2010, a miner, Rhett Mosley, was involved in a fatal accident at 

Respondent’s Rex Strip #1 mine. MSHA inspector David A. Faulkner was immediately 

dispatched to the mine. Faulkner, along with other MSHA personnel, conducted an investigation 

into the causes of the accident. On February 25, 2011, following that investigation, Faulkner 

issued three 104(a) citations and assessed a total penalty of $157,500.00. Respondent contested 

these citations and filed an Answer to the assessed penalties on July 28, 2011. The undersigned 

was assigned to the case on December 6, 2012. On April 10, 2014 a hearing was held on these 

matters. On May 22, 2014 the parties submitted Post-Hearing Briefs. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

REX COAL COMPANY, INC., 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. KENT 2011-1037 

A.C. No. 15-19069-253078 

Mine: Rex Strip #1 

September 15, 2014

36 FMSHRC Page 3195
STIPULATIONS 

The parties have entered into several stipulations, admitted as Parties’ Joint Exhibit 1.1

 

Those stipulations include the following: 

1. Rex Coal Company, Inc. is subject to the Federal Mine Safety and Health Act of 1977. 

2. Rex Coal Company, Inc. has an effect upon interstate commerce within the meaning of 

the Federal Mine Safety and Health Act of 1977. 

3. Rex Coal Company, Inc. is subject to the jurisdiction of The Federal Mine Safety and 

Health Commission and the presiding Administrative Law Judge has the authority to hear 

this case and issue a decision. 

4. Rex Coal Company, Inc. operated the Rex Strip #1 Mine, I.D. No. 15-19069, in 2011. 

5. The Rex Strip #1 Mine produced approximately 84,000 tons of coal in 2010. 

6. Citation Nos. 8365953, 8365954, and 8365955 were properly issued by an authorized 

representative of the Secretary and are admissible. 

7. A reasonable penalty will not affect Rex Coal Company, Inc.’s ability to remain in 

business. 

(JX-1) (see also Transcript at 8).2

SUMMARY OF TESTIMONY 

At approximately 12:00 a.m. on November 23, 2010, Rhett Mosley, was killed in an 

accident at Rex Strip No. 1 Mine. (Tr. 24-25,174). Mosley’s shift ran from 6:00 p.m. to 5:00 

a.m., but Mosely arrived at 5:00 p.m. on Monday November 22, 2010, to service equipment. 

(Tr. 24). Mosley worked as the second shift lube truck operator and, in that capacity, he would 

supply diesel fuel and lubricants to equipment as needed and in between shifts. (Tr. 24-25, 42, 

175-176). This was to ensure there was proper maintenance throughout the production cycle. 

(Tr. 25). 

The lube truck was a 1988 Mack Model DM-690-SX tandem axle truck with a rigid 

chassis and a large service bed. (Tr. 26, 101). The truck weighed approximately 55,000 pounds. 

(Tr. 101-102). In the back, enclosed in a van body, were tanks of lubricants, antifreeze, and 

grease. (Tr. 26, 40). Between the bed and the cab was a 1,000-1,100 gallon rectangular steel 

tank for hauling diesel fuel. (Tr. 26, 40). The truck had three axles, including a steering axle 

 1

 Hereinafter the Joint Exhibits will be referred to as “JX” followed by the number. 

Similarly, the Secretary’s Exhibits will be referred as “GX” and Respondent’s Exhibits will be 

referred to as “RX.” 

2

 Hereinafter the transcript will be cited as “Tr.” followed by the page number. 

36 FMSHRC Page 3196
under the engine and two drive axles (a center and a rear axle) driven by the engine. (Tr. 101, 

113). The truck was equipped with a service brake on each of the six wheels (two on each axle). 

(Tr. 26, 108). There were also four parking brakes on the ends of each rear axle. (Tr. 108). It 

also included an engine brake. (Tr. 27). The truck was used on both of the mine’s shifts. (Tr. 

47). 

The incident at issue here occurred at the bottom of a roadway descending from the high 

splint coal seam elevation to the low splint coal seam elevation.3 (Tr. 25, 181). The roadway 

from the high splint to the low splint was approximately 524 feet long, 21 feet wide, and at a 

22% grade. (Tr. 29-30, 103, GX-2, 3, and 4). The roadway was dry. (Tr. 35). The grades were 

measured in segments, with the top of the hill having a 25% grade for 180 feet. (Tr. 102-103). 

There was also a 54-inch berm along the right side of the roadway which was the appropriate 

size. (Tr. 30, 34-35). There was a highwall or spoil area on the left side of the roadway. (Tr. 30, 

34-35). At the beginning of the shift, Mosley had fueled equipment by going up and down this 

hill. (Tr. 76, 179, 186, 211-213). 

Mosley was parked at the top of this roadway eating his lunch. (Tr. 26, 34, 77, 183). At 

the base of the roadway (the low splint area), the dozer operator James Muncy had created a 

service road so that Mosley could bypass the backfill left by the production crew and enter the 

production pit to service equipment. 4 (Tr. 27-28, 31-32, 34, 37-38, 181, 205-208, GX-7). 

Reaching this service road in the backfill required a left turn off of the roadway.5

 (Tr. 37-38). 

Muncy informed Mosley that the service road was open for his use. (Tr. 26, 31). Mosley turned 

his truck around, stopping on a slight incline, and started to move down the hill. (Tr. 183-184). 

Muncy saw Mosley travel down the hill at an unusually high speed. (Tr. 208-209). Mosely had 

a radio but did not say anything either before or during his descent. (Tr. 208-209, 211). As 

Mosely’s truck descended toward the service road it lost control, encountered the berm, was 

“deferred” by the berm back into the roadway, and overturned on its left side. (Tr. 27, 31, 68-69, 

76, 209). As the truck went down the hill it was rocking back and forth, even from the start. (Tr. 

68, 209). The truck’s front tires may have come off the ground. (Tr. 68, 209). Muncy watched 

as Mosley wrecked, including seeing the truck in the air. (Tr. 208-210). Mosely either jumped 

or was thrown from the vehicle and was pinned beneath the service bed area of the truck. (Tr. 

27, 31-32). 

 3

 The mine worked multiple coal seams. (Tr. 25). The uppermost coal seam was the high 

splint coal seam and the lowermost coal seam was the lower splint coal seam. (Tr. 25). 

4

 James Wilson Muncy appeared at hearing and testified for Respondent. (Tr. 203). At 

the time of the hearing Muncy worked as a diesel mechanic for Curtis Equipment. (Tr. 203-

204). During his career he worked for Big Branch Energy, Southern Coal, Sequoia, and Loving. 

(Tr. 204). He had worked on rock trucks, dozers, and coal loaders. (Tr. 204-205). Muncy 

believed he started work at the mine about four months before the accident. (Tr. 205). 

5

 Muncy was moving material from the low splint pit to the roadway to eliminate the 

grade. (Tr. 27, 213). He had driven the dozer on the hill earlier, but had not left any rough 

patches because he backed down the hill. (Tr. 213-214). 

36 FMSHRC Page 3197
James Chasteen was working in his excavator when the accident occurred.6

 (Tr. 180). 

He heard someone say “just a second, Slater. Someone needs to get down here now,” twice. 

(Tr. 180). Chasteen knew something was wrong and ordered the dozer to go down the hill. (Tr. 

180). He went over the hill where Mosley had traveled and saw the truck on its side. (Tr. 180). 

He did not actually see Mosley drive down the hill. (Tr. 188). 

After the accident, Muncy called the MET, who was already on his way over. (Tr. 210). 

Muncy then went to check on the situation. (Tr. 210). Muncy and the MET walked over to the 

truck, eventually the MET found Mosley under the truck. (Tr. 210).

Inspector David A. Faulkner investigated this accident.7 (Tr. 22). After being informed of 

the accident, Faulkner traveled to the mine site and gathered information for a preliminary report. 

(Tr. 22-23). To that end, he conducted informal interviews with second shift employees and 

observed the accident scene. (Tr. 23). He also scheduled for tech support, including Mechanical 

Engineer Terry Marshall to evaluate the truck, and arranged formal interviews.8 (Tr. 23, 98). 

Marshall traveled the day of the accident and started his investigation the next day. (Tr. 98). 

6

 James R. Chasteen appeared at hearing and testified for Respondent. (Tr. 173). At the 

time of hearing, Chasteen had been working in the mining industry for seven years and was 

working as a truck driver for JW Resources. (Tr. 173-174). He had worked as a dozer operator, 

benchman, and on an excavator. (Tr. 173). At the time of the accident, he worked for 

Respondent. (Tr. 174). Chasteen met Mosley in August 2010, when Chasteen was hired as night 

shift foreman. (Tr. 174-175). As foreman, Chasteen would pre-shift the mine to make sure it 

was safe for the men at the start of the shift. (Tr. 175). He would also ensure all safety 

precautions were followed. (Tr. 175). He supervised three rock truck drivers and one lube truck 

driver. (Tr. 187). 

7

 Inspector Faulkner appeared at the hearing and testified for the Secretary. (Tr. 19). At 

the time of hearing Faulkner worked as a surface CMI for MSHA and had held that position 

since March 5, 2006. (Tr. 19). Faulker received inspector and accident investigation training at 

the National Mine Safety and Health Academy. (Tr. 20). He had conducted two or three fatal 

investigations at the time of the accident (six or seven at the time of the hearing). (Tr. 66). 

Faulkner had worked in the surface mining industry for 17 years, including time as the 

owner/operator of contract augering companies, a foreman, a superintendent, production 

manager, dozer operator, auger operator, loader operator, and truck driver. (Tr. 20-22). In 

management positions he handled operations, hiring, and placement. (Tr. 21). In 1986-1987 

Faulkner was certified as a Kentucky Surface Mine Foreman, a Tennessee Mine Foreman, and a 

Kentucky Mine Energy Technician (now lapsed). He also had a commercial driver’s license 

since 1990. (Tr. 21-22). 

8

 Terry Marshall was present at the hearing and testified on behalf of the Secretary. (Tr. 

93, GX-17). At the time of the hearing, Marshall was a mechanical engineer for the Mechanical 

Engineering Safety Division of MSHA in the technical support and approval center. (Tr. 93-95). 

In that capacity he provided technical assistance for enforcement, obtained technical information, 

and evaluated that information. (Tr. 95). That included accident investigation, for which he was 

trained by MSHA. (Tr. 94-95). He had investigated 80 to 90 accidents, around 40 of which 

(continued...) 

36 FMSHRC Page 3198
When Inspector Faulkner and Marshall initially observed the truck, it was at the accident 

scene. (Tr. 23-24, 98-99). The truck was damaged on the left side cab door, in the service bed, 

and at the front axle. (Tr. 39). At some point the excavator was used to overturn the truck so 

Mosley could be removed. (Tr. 33-34, 38-41, GX-3, 4, 7, 8 & 9). On the 24th or 25th it was 

moved to a maintenance facility for further evaluation. (Tr. 24, 99). That evaluation lasted four 

or five days and took approximately two man-days to complete. (Tr. 24, 100, 160). Both 

Faulkner and Marshall examined the truck. (Tr. 23, 98). They spent a few days looking at the 

mechanical condition of the truck, including the engine brake system, the service brake system, 

the parking brake system, the seat and seatbelt assembly installation, and the tank volumes. (Tr. 

99-100). Marshall worked with Faulkner to get maintenance information on the truck. (Tr. 100). 

Sometimes, Respondent’s employees were present. (Tr. 100). Based on Marshall’s findings, 

Faulkner concluded the investigation and completed a detailed report. (Tr. 23-24).

Three citations were issued based on the accident investigation. (Tr. 41). Citation No. 

8365953 was a 104(a) citation issued under 30 C.F.R. §77.1607(b), which deals with mobile 

loading and haulage equipment, like the lubricant truck (GX-10). (Tr. 41-42). The cited section 

required mobile equipment operators to have full control of moving equipment. (Tr. 42). 

According to Faulkner, “full control” means being able to maintain and stop or direct a piece of 

equipment to the location as desired. (Tr. 67). The cited standard was meant to prevent 

operators from losing control of equipment and experiencing accidents. (Tr. 42). Inspector 

Faulkner cited this standard because Mosley was unable to maintain control of the truck, the 

truck overturned, and Mosley was involved in a fatal accident. (Tr. 42, 66-67). 

To determine the level of control, information was gathered about the weight of the truck, 

the length of the road, the grade of the road, and the speed the truck would travel in various 

gears. (Tr. 67-68). Marshall found that the maximum engine RPM for the truck would be 2200 

RPM. (Tr. 104). In addition, he determined the maximum speed for each gear setting on the 

truck. (Tr. 104-105). The first low gear would have a maximum speed of 3 miles per hour and 

the first high gear would have a maximum speed of 5 miles per hour.9

 (Tr. 69, 105, 238). The 

engine brake would help to maintain these speeds.10 (Tr. 105). It was possible that, if the truck 

8

 (...continued) 

involved trucks. (Tr. 95-96). Marshall primarily worked with mobile surface and underground 

(equipment. (Tr. 95). Marshall received a Bachelor’s degree at Ohio State University in 1996 

and began working for MSHA in that year. (Tr. 94). He had worked in both the Mechanical 

Engineering Safety Division and Applied Engineering offices for MSHA. (Tr. 94). Since the 

90’s Marshall had been a member of the Society of Automotive engineers, a professional society 

that develops standards in the automotive, off-highway, and airline industries. (Tr. 96). In that 

society he is a member of a few committees within the construction, agriculture, and off-highway 

portion including a committee on braking standards for off-highway equipment. (Tr. 96-97). 

9

 This particular truck had a Maxidine transmission and two shifters. (Tr. 238). One 

shifter went from one to five while the other was either low or high. (Tr. 238). 

10 An engine (or Jake) brake is an auxiliary brake separate from the service brake system 

that is used to control the speed of the truck. (Tr. 103-104). It prevents exhaust from escaping, 

creating compression in the engine and thereby slowing the truck. (Tr. 27). It essentially 

changes the function of the engine so that it absorbs power instead of providing power. (Tr. 103-

104). 

36 FMSHRC Page 3199
was moving 3 to 5 miles per hour in low gear, the truck could have traversed the hill in a 

controlled manner and made the left turn. (Tr. 71-72). However, Faulkner and Marshall did not 

know the exact speed of the truck. (Tr. 67, 80, 161). The field dozer operator, James Muncy 

saw the truck coming down the hill at a greater than normal speed. (Tr. 27-28, 67-68, 80, 105-

106). Marshall considered several subjective factors (including braking capacity and when 

brakes were applied) and estimated that the truck was moving five miles per hour. (Tr. 161-

162). High speed would be inconsistent with travel in low gear or the use of the engine brake. 

(Tr. 69, 105-106). 

Based on the speed and the inability to stop, Faulkner and Marshall believed the truck 

was in neutral rather than in gear. (Tr. 69-71, 80, 105-106). The gear shift was found in neutral. 

(Tr. 70-71, 106). The truck could have been in neutral because of driver error or it could have 

slipped out of gear under load because it was not fully engaged. (Tr. 107). Faulkner did not see 

any indication that Mosley intended to put the truck in neutral and believed that the truck could 

have slipped out of gear at impact. (Tr. 70-71). However, Marshall believed the truck was in 

neutral before impact. (Tr. 106-107). If the engine slipped out of gear it would be difficult to get 

it back in because, in order to do so, the speed of the engine and the speed of the transmission 

components must be equal. (Tr. 107-108, 164). When a truck is in neutral, the engine brake will 

be ineffective to control the speed. (Tr. 107). The engine brake would also stall the engine if it 

popped out of gear. (Tr. 107). A stalled engine would make it more difficult to match the RPMs 

of the engine and transmission to return the truck to gear. (Tr. 108). 

 

The cited standard requires equipment to be operated at speeds prudent and consistent 

with conditions of roadway grades, clearance, visibility, and traffic. (Tr. 70). Normally, the 

truck would be in gear. (Tr. 76). Faulkner conceded that it would not be prudent or consistent 

with conditions to place this truck in neutral. (Tr. 70). Faulkner would not have descended the 

hill in neutral because, based on the braking capacity of the truck, it could be dangerous. (Tr. 

71). However, he believed that given all of the truck equipment, including the transmission, 

gears, and the engine brake, the truck should have been controlled, regardless of speed. (Tr. 75-

76). 

Foreman Michael Boggs also testified that neither he, nor anyone else at the mine, would 

go down the hill in neutral because it would be dangerous.11 (Tr. 198-199). The other lube truck 

 11 Michael Boggs appeared at the hearing and testified for Respondent. (Tr. 189). At the 

time of the hearing, Boggs had been in the surface mining industry for 30 years and worked for 

Kentucky Fuels as a grader. (Tr. 189-190). He had worked in every aspect of the surface mining 

industry including running equipment, acting as foreman, and working as an MET. (Tr. 189). 

He also had a commercial driver’s license. (Tr. 200). Boggs received his surface foreman 

papers in 1999 and worked as a foreman for 10 years. (Tr. 190). At the time of the accident, 

Boggs worked as dayshift foreman for Regional Contracting at the subject mine. (Tr. 190-191). 

He started there in 2009 as the night shift foreman. (Tr. 191). As foreman, he would run the 

daily operations of the mine, set up job sites, coordinate with Chasteen, and confer with Terry 

Loving regarding maintenance, coal haulage, drilling, and blasting. (Tr. 191). Boggs was not 

working on the evening shift when Mosley was killed, but he knew Mosley when they both 

worked nights. (Tr. 192). Boggs had no notes from the day of the accident. (Tr. 200). 

36 FMSHRC Page 3200
driver, Matthew Blanton, testified that he never drove down the hill in neutral because it would 

be easy to lose control of the truck.12 (Tr. 240). Instead, he would travel down the hill in low 

first gear. (Tr. 238, 241-242). In low gear it was unnecessary to use the service brakes down the 

hill. (Tr. 238-239, 242). He would travel 3-5 miles per hour without application of the brakes. 

(Tr. 242). Blanton did not believe the engine brake would have been necessary in first low gear, 

but it was available if needed. (Tr. 239, 242-243). He might have used the service brakes to 

make the turn at the bottom of the hill, but was unsure because five miles an hour is not very fast. 

(Tr. 243). 

The gravity was marked as having occurred and resulting in a fatal injury. (Tr. 43). This 

citation was marked as S&S for the same reasons. (Tr. 44). 

The negligence was marked moderate because Respondent knew or should have known 

the truck would be required to travel up and down steep grades during operation. (Tr. 43). The 

truck was used in adverse conditions while carrying heavy loads. (Tr. 43). Also, Respondent 

was required to ensure all vehicles were maintained in a safe operating condition. (Tr. 43). 

This citation was terminated when Respondent implemented an action plan and trained 

employees on safe and proper operation of all loading and hauling equipment on inclined 

roadways. (Tr. 44). This training occurred prior to the mine returning to operation. (Tr. 44). 

Citation No. 8365954 was a 104(a) citation issued under 30 C.F.R. §77.1605(b), which 

required mobile equipment to be equipped with adequate brakes (GX-11). (Tr. 45-46). The 

standard was designed to allow an equipment operator to stop a piece of mobile equipment when 

needed. (Tr. 46). MSHA does not officially define “adequate.” (Tr. 46). Inspector Faulkner 

believed that “adequate” meant the operator should be able to stop or control the vehicle with the 

brakes at any time and in any circumstance encountered during the mining process. (Tr. 46, 73-

74). However, he believed the ability to stop had to be considered in light of all other factors, 

including speed, weight, and grade. (Tr. 73-74). Inspector Faulkner cited to this standard 

because the technical support evaluation conducted by Marshall found four of the five service 

brakes and three of the four parking brakes were ineffective or compromised. (Tr. 46-47, 79). 

With respect to that technical support evaluation, Marshall found that that the wheels on 

the truck contained S-cam drum brakes. (Tr. 108-109, GX-20). This type of brake was applied 

with a foot pedal attached to the brake chamber. (Tr. 109, GX-20). The brake chamber was the 

actuator that applied and released the brake. (Tr. 110). In this truck, the steering axle brake was 

air applied and released solely by the pedal. (Tr. 110). The parking brakes on the rear axles 

could be air applied and released by pedal or spring-applied and air released. (Tr. 110). As air 

pressure was applied to the brake chamber, pushrods were extended from the brake chamber into 

the slack adjustor. (Tr. 109). The slack adjustor was connected to the end of the brake cam and 

 12 Matthew Blanton appeared at hearing and testified for Respondent. (Tr. 230). At the 

time of the hearing he worked as a day-shift serviceman for Jean Coal Company, where he had 

worked for four years. (Tr. 231-232). This was his first job in the coal industry, after previously 

working as an ironworker. (Tr. 231). As a serviceman, he ran the lube truck, greased 

equipment, fueled, changed oil, changed filters, and kept everything running. (Tr. 231). 

36 FMSHRC Page 3201
as the adjustor was applied, the linear motion of the pushrods was transmitted into rotational 

motion in the brake S-cam. (Tr. 109). As the S-cam was rotated during the brake application, it 

pushed on the rollers which in turn pushed onto the shoe. (Tr. 109-110). The shoe then 

contacted the drum, causing braking. (Tr. 110). 

 

Marshall checked the size of the brake chambers to ensure that they conformed to the 

equipment manufacturer specification and to identify the readjustment limits for the brake 

chambers. (Tr. 114). The steering axle contained Type-24 size brake chambers, while the rear 

axles had Type-30 size brake chambers. (Tr. 113-114). There is a direct correlation between the 

size of the chamber and how much output force the pushrod applies to the slack adjustor. (Tr. 

114). A pushrod is a metal rod that moves in and out of the brake chamber when the brake is 

applied. (Tr. 82-83). The pushrod stroke is the amount that the pushrod extends out of the brake 

chamber when the brakes are applied. (Tr. 82, 115). Pushrods need to be adjusted periodically. 

(Tr. 166). Brakes can go out of adjustment for multiple reasons including general wear, wear on 

the brake lining, and defective slack adjustors. (Tr. 166-167). The readjustment limit is the 

maximum allowable pushrod stroke before maintenance is required. (Tr. 115). To determine 

whether the readjustment limit has been reached, the pushrod stroke must be measured. (Tr. 

117-118). This can be done by selecting a point on the pushrod or slack adjustor and then 

measuring it against a reference point. (Tr. 117). First a measurement between the pushrod or 

slack adjustor and the reference point is made with the brake released. (Tr. 117). Then the brake 

is applied and another measurement is taken from the same locations. (Tr. 117). The difference 

between the measurements is the pushrod stroke. (Tr. 117). 

According to the Mack air brake manual, Type-24 brakes need to be readjusted when a 

pushrod stroke of one and three-quarter inches is measured. (Tr. 115). For a Type-30 brake 

chamber, the amount is 2 inches. (Tr. 115). For practical purposes, Marshall explained that on a 

Type-30 brake chamber, as the output forces the slack adjustor out from 0 to 2 inches, there is a 

relatively consistent output of force. (Tr. 115-116). Once the adjustor goes beyond 2 inches the 

output force exerted by the pushrod onto the slack adjustor starts to diminish. (Tr. 116). 

Eventually, the brake will reach full stroke limit, where the brake chamber can physically go no 

further and no force is applied. (Tr. 83, 116-117). The measurement between the re-adjustment 

limit and the point at which the brake completely bottoms out is known as the reserve stroke. 

(Tr. 130). For the Type-30 brake, the full stroke limit is 2.5 inches. (Tr. 116). So between 2 and 

2.5 inches, the force exerted by the brake chamber on the slack adjustor starts to decrease 

quickly, but still has some braking capacity. (Tr. 116-117, 168). However, depending on the 

amount of reserve stroke, this limited capacity can disappear in high demand situations. (Tr. 

168). 

Marshall’s report summarized the significant findings with respect to each of the brake 

ends or wheels.13 (Tr. 123). On the left side steering axle, the pushrod stroke measurement was 

one and seven-eighths inch. (Tr. 119-120). Marshall did not believe the accident could cause 

the brakes to come out of adjustment. (Tr. 167). The contact surfaces of this brake drum were 

 13 In preparing that report, Marshall was tasked with examining the mechanical condition 

of the truck and was not directed specifically to determine if the brakes were adequate. (Tr. 

154). He was not asked to determine the status of the brakes under normal mining conditions. 

(Tr. 154). Normally, this truck would be driven in gear when going down the hill. (Tr. 155). 

36 FMSHRC Page 3202
rusted and pitted. (Tr. 124-125, GX-22). This indicated that the brake shoe was not contacting 

the drum when the brake was applied but instead that a gap existed that allowed dirt to 

accumulate on the shoe and for the drum to rust. (Tr. 124-127, 139-140, GX-23). Therefore, 

this brake was not producing any braking force. (Tr. 127). A properly applied brake would be 

silvery and shiny from the shoe contacting the drum. (Tr. 126). This condition could have 

existed for a month or two. (Tr. 126). In addition, the S-cam rollers were unseated and lying 

loose in the brake assembly. (Tr. 124). While the roller condition could have occurred during 

the accident, Marshall still believed that the shoe was not contacting the drum, as shown by the 

rust. (Tr. 139-140). 

On the right side steering axle, the pushrod stroke measurement was two and threequarter inches. (Tr. 119). The readjustment limit was one and three-quarter inches. (Tr. 119). 

That meant that this particular brake was at full stroke measurement and was no longer applying 

any effective force to the slack adjustor. (Tr. 119, 127). This wheel end was ineffective. (Tr. 

119). In addition, there was a slight grease-like contamination in the brake line. (Tr. 127-128, 

GX-25). Portions of the contact surface of the brake shoe, as well as the brake assembly, 

appeared wet. (Tr. 128). Friction between the shoe and the drum was the essential braking 

action provided by the assembly and this grease-like material would reduce the coefficient of 

friction between those components. (Tr. 128-129, 160). The grease-like material would not 

necessarily result in reports of slipping when braking. (Tr. 159). No testing was done on the 

grease-like material to determine the degree to which it affected braking. (Tr. 158, 160). 

Marshall believed this brake was severely compromised. (Tr. 129). 

The left side center drive axle was out of adjustment with limited reserve stroke and had a 

grease-like contamination on portions of the brake-lining. (Tr. 129-130). The pushrod stroke 

measurement was for this wheel was two and a quarter inch. (Tr. 120). The readjustment limit 

here was 2 inches, so this brake was out of adjustment, close to full stroke limit, and in need of 

maintenance. (Tr. 120, 130). The degree to which this brake was compromised meant that under 

different operating conditions it would have different braking capacities. (Tr. 130). In low 

demand, static situations (80-90 PSI), there would be some braking but in high demand, dynamic 

situations (perhaps 120 PSI) the reserve stroke would be used up and the chamber would 

essentially be at full stroke limit.14 (Tr. 130-131). The situation here placed a heavy burden on 

the brake, eliminated the stroke reserve, and lost braking force. (Tr. 132, 168-169). The main 

concern with this wheel was that the reserve stroke would disappear in high demand situations. 

(Tr. 133). However, this would not be a brake failure, because it was related to maintenance. 

(Tr. 170). In addition to the adjustment, the wheel had a grease-like contamination. (Tr. 132-

133). This condition compromised the brake by reducing the coefficient of friction, though the 

degree to which this occurred was uncertain. (Tr. 133). However, the contamination was only 

on portions of the brake. (Tr. 133). 

On the right side center drive axle, the pushrod stroke could not be measured because of 

the damage done to the brake chamber during the accident or recovery. (Tr. 120, 133). 

Therefore, the adjustment was deemed sufficient and effective. (Tr. 133-134). 

 14 Static conditions would be sitting or moving slowly on level ground, like Respondent’s 

pre-shift, while a dynamic situation would be moving on a 25% grade in neutral. (Tr. 131-132, 

169). 

36 FMSHRC Page 3203
On the left side rear drive axle, the pushrod stroke measurement was two and threeeighths inches. (Tr. 120). This brake chamber was out of adjustment and had no effective 

reserve stroke. (Tr. 121-122, 134). In a dynamic or even static condition, this brake chamber 

was not producing effective braking force. (Tr. 134, 137). This brake also had a significant 

amount grease-like contamination on the brake lining. (Tr. 134, GX-26). Some of the grease 

had been transmitted to the contact surface of the brake shoe, but not fully across the shoe’s 

width. (Tr. 134-135, GX-27). Marshall believed this material was actually grease, while other 

fluids on the wheel were probably axle lubricant spilled during over lubrication of the bushings. 

(Tr. 135). The brake shoe was worn down to the hardware and showed general wear. (Tr. 136). 

The grease was not as serious an issue as brakes bottomed out in a static position. (Tr. 134-135). 

On the right side rear drive axle, the pushrod stroke measurement was over two inches. 

(Tr. 120). However, because of the damage to the brake chamber, it was difficult to measure the 

stroke. (Tr. 121). Marshall was unable to air-release the brake and instead had to use a 

mechanical release to measure the 2 inches. (Tr. 121). However, the mechanical release under 

reports the pushrod stroke as compared to an air release. (Tr. 121). Despite this, Marshall felt 

that this brake could not provide effective force to the slack adjustor and had no reserve stroke. 

(Tr. 121-122, 137, 168-169). This would be true even in static conditions. (Tr. 137). 

The truck also had parking brakes on each of the wheel positions on the two rear drive 

axles. (Tr. 137-138). The parking brakes used the same assemblies as the service brakes, they 

were simply applied differently; the service brakes were applied to all six wheels with a pedal 

and the parking brakes were applied to the four rear wheels with a manual push-pull control 

valve or with automatic pressure gauges.15 (Tr. 137-138, 167-168). Therefore, the problems 

found in the service brakes also apply to the parking brakes. (Tr. 138). 

In addition to these findings, Marshall inspected other aspects of the brakes but found 

they did not play a significant role in the accident. (Tr. 122-123, 157-158). Specifically, 

Marshall inspected the brake lining thickness on each wheel to determine their condition. (Tr. 

122). Three of the six had lining segments below accepted limits and an additional segment was 

at the minimum level. (Tr. 122). Marshall also measured the internal brake drum diameters. 

(Tr. 122-123). This showed that two of the six brakes were worn below the recommended limit. 

(Tr. 123). In high demand brake situations, this condition would allow heat to be absorbed into 

the brake drum at a quicker rate than normal, causing the drum to expand. (Tr. 123). This 

essentially increases the pushrod stroke requirement. (Tr. 123). 

The engine brake was adequate. (Tr. 72, 104, 157, 165). Faulkner testified that if it had 

been engaged it might have slowed the truck. (Tr. 72). 

In general, Marshall believed the brakes on the truck were in poor condition and would 

have been inadequate when the truck was in neutral on a 25% grade. (Tr. 139, 146, 148). At 5 

miles per hour under heavy load, the total braking capacity could have been as low as 20%. (Tr. 

143, 146). Most of that braking would come from the right center or rear drive axles. (Tr. 146). 

 15 The automatic application occurred if the brakes fell to 40 PSI. (Tr. 138-139). The 

pressure came from the primary and secondary air systems on the truck. (Tr. 139). The actual 

pull valve would move when the brakes automatically applied. (Tr. 139). 

36 FMSHRC Page 3204
Despite this, Faulkner and Marshall agreed there was no catastrophic failure of the brakes; 

instead this was a maintenance issue. (Tr. 78, 169-170). The brakes would not have to be at 

100% capacity to be adequate, but the necessary capacity would depend on the conditions. (Tr. 

155-156). If Marshall gave every benefit of the doubt (including ignoring lining contamination) 

the highest capacity would be 50% of service braking. (Tr. 147). He felt at least 50% capacity 

would be needed to compensate for the 25% grade, even without considering the 500-foot 

distance. (Tr. 147, 156, 163). Without 50% capacity Mosley had no opportunity to control the 

truck. (Tr. 164-165). Marhsall testified that to control the truck here, the brakes would need 

around 75% capacity to allow the driver time to react. (Tr. 163-164). He also believed that 

brakes with no significant maintenance issues would have stopped a truck going 15 to 20 miles 

an hour in neutral on a 25% grade. (Tr. 148). The size of the truck and the fact that it was in 

neutral was more relevant here than the speed. (Tr. 161-162). However, it is possible for a truck 

to move so fast that even 100% brake capacity could not control it. (Tr. 162). 

Marshall opined that when the truck drove up the hill during the shift with the engine 

brake controlling the speed and the service brakes providing additional deceleration, the braking 

capacity was adequate. (Tr. 165). However, this was a low demand situation. (Tr. 165). A low 

demand situation can become a high demand situation if the brakes were applied long enough. 

(Tr. 166). According to Marshall, if the truck were in first gear and traveling at around five 

miles per hour under control of the engine brake, 20% capacity would have been adequate to 

decelerate the truck and control it on the grade. (Tr. 143, 156-157, 161-162). However, 

deceleration and control are different and control would depend on how the brakes were applied. 

(Tr. 156-157). By second high gear, the engine brake would not have controlled the truck. (Tr. 

143-144). 

Marshall believed that Mosley attempted to apply the service brake during the accident. 

(Tr. 14, 151). First, use of the brakes would have been a natural reaction for any driver. (Tr. 

144). Second, the brake pressure when first inspected after the accident was 75 PSI in both 

tanks, and there was no damage to the truck that would cause air loss. (Tr. 144-145, GX-28). 

This was shown in both the primary and secondary air systems. (Tr. 145). Therefore, the air was 

depleted by the driver applying and releasing the service brake during the accident. (Tr. 144). 

Marshall tested the air systems after the accident, and they were able to maintain 100 PSI for a 

considerable time. (Tr. 145-146). If the brakes had not been applied, they would have been over 

100 PSI, maybe up to 110 or 120. (Tr. 146). He did not believe the reduction in air pressure 

occurred during the accident, because of the nature of the accident damage. (Tr. 146). 

Marshall also believed that Mosley manually applied the parking brake. (Tr. 151-152). 

This was because under normal conditions, the parking brake is spring-applied, air released. (Tr. 

152). Therefore, during operation, when the brake is released, air pressure is released into the 

brake chambers. (Tr. 152). The damage done during the accident in one of those brake 

chambers would have allowed this pressure into the open air if released. (Tr. 152). If the brake 

was released when the accident occurred, the air would have been released down to 45 PSI and 

then shut off when the brake automatically applied preventing further release. (Tr. 152-153). 

Instead it was at 75 PSI, indicating that the parking brake was applied before automatic 

application. (Tr. 152-153). 

36 FMSHRC Page 3205
Marshall did not know when Mosley applied the brakes. (Tr. 164). Instead of applying 

the brake, he may have attempted to first put the truck back in gear. (Tr. 164). It was possible 

he was already free-rolling when attempting to use the brakes. (Tr. 164). 

Respondent’s witnesses testified that the brakes were adequate. (Tr. 181, 185-187, 194-

196, 199-200, 222-224). Terry Loving testified that the Burnette Combs Contracting Company 

adjusted the brakes on the lube truck on October 25, 2010.16 (Tr. 47, 223, RX-F). Combs was a 

mechanic who owned a repair company and he would come to the mine as repairs were needed. 

(Tr. 224). Loving did not know how or why Combs had adjusted the brakes. (Tr. 224). 

In addition, Loving, Chasteen, Blanton and Boggs testified that Mosley did not complain 

about any problems with the brakes on the truck at that time or any other time. (Tr. 181, 194, 

222, 240). Chasteen testified that he had also driven the truck up and down the hill without any 

issues stopping. (Tr. 185). He had never driven the truck down the hill in neutral. (Tr. 185-

186). He would drive the truck at 15-25 miles an hour on flat surfaces and 5-10 miles per hour 

on a grade, depending on the grade. (Tr. 187). At no time while Chasteen was working for 

Respondent did anyone complain about the brakes on the truck. (Tr. 185). Loving testified that 

his son Andrew drove the truck for several months and did not complain about the brakes. (Tr. 

222-223). Blanton had driven the truck earlier in the day and performed the pre-operational 

examination but found no problems or slippage with the brakes at that, or at any, time. (Tr. 194, 

236, 238-240). In fact, Blanton had traveled the hill more than 10 times, including once (or 

perhaps twice) on the day of the accident. (Tr. 235-237). Blanton did not recall problems with 

the brakes in making the turn onto the service road. (Tr. 237-238). The turn could be made 

without difficulty even if the brakes were not used. (Tr. 239). Boggs had driven the truck four 

or five times, as recently as two weeks before the accident, without complaint. (Tr. 194, 200). 

Bogg’s son had worked on the lube truck for a year and a half without any complaints regarding 

the brakes. (Tr. 194-196, 199). 

The gravity was marked as having occurred and resulting in a fatal injury. (Tr. 48). This 

citation was marked as S&S for the same reasons. (Tr. 48). 

The negligence was marked moderate because the operator knew or should have known 

that the truck would be used in adverse conditions, hauling heavy loads on steep grades where 

high demand would be placed on the service brakes. (Tr. 46-47). The fact that the brakes were 

adjusted on October 25 did not affect this evaluation because, based on Faulkner’s experience, 

including driving this type of truck, brakes will be used at different times and in different 

 16 Terry Glenn Loving appeared at hearing and testified for Respondent. (Tr. 215). At 

the time of the hearing, Loving was the superintendent of underground mines for Harlan 

Cumberland Coal Company, a single mine. (Tr. 215-216). Loving had worked in the mining 

industry since 1967, starting at the age of 13 on the surface helping his father. (Tr. 216). He 

worked for several different coal, logging, and trucking companies over the years. (Tr. 216-

217). At those locations he worked as a foreman, president, and owner at various companies. 

(Tr. 216-217). He then worked for Respondent as superintendent of underground mines (before 

switching to Harlan Cumberland) (Tr. 217-218). Harland Cumberland and Respondent are sister 

companies owned by Joe Bennett. (Tr. 218). Loving had worked for Bennett since 1984. (Tr. 

219). 

36 FMSHRC Page 3206
situations. (Tr. 47-48, 86-87). Brakes may have to be adjusted as often as once a day, depending 

on the durability, the conditions, and the amount of travel. (Tr. 48). Other than the left side 

steering axle, Marshall could not say how long the conditions existed. (Tr. 140). 

The citation was terminated when Respondent implemented a new written procedure to 

provide for regular mobile equipment examination, maintenance, and repairs to the braking 

system of each machine. (Tr. 49). This termination occurred on 2/25/2011 at 8:25 a.m. (Tr. 49). 

Citation No. 8365955 was a 104(a) citation issued under 30 C.F.R. §77.1606(a) (GX-12). 

(Tr. 49). This standard requires that a competent person make an examination of mobile loading 

and haulage equipment prior to that equipment being placed into service. (Tr. 49). Any safety 

defects observed must be recorded and reported to management. (Tr. 49). Faulkner believed 

that a competent person was someone with experience and expertise in operating a piece of 

equipment. (Tr. 49). The standard was designed to ensure that any safety defects on the loading 

and mobile haulage equipment were corrected before use. (Tr. 50). Faulkner did not conduct 

pre-operational examinations as an inspector, though he observed them. (Tr. 82). Further, when 

he was a truck driver, he did not conduct pre-operational examinations. (Tr. 82). Marshall was 

also familiar, though he never conducted one himself. (Tr. 141). Marshall was vaguely familiar 

with the regulations regarding pre-operational checks, but he typically defers to enforcement for 

interpretation. (Tr. 141). 

Faulkner issued Citation No. 8365955 because the pre-shift examination of the lube truck 

was inadequate. (Tr. 52-53). Respondent provided checklists to the equipment operator to use in 

examining mobile equipment. (Tr. 50, 53) (GX-13). The checklist included walk-around items, 

engine compartments, fluid levels, tires, fire extinguishers, operator’s compartments, glass, loose 

objects, seatbelts, brakes, horns, back up alarms, and similar items. (Tr. 50, 193). The operator 

was not required to keep this checklist by MSHA. (Tr. 50-51). However, Faulkner would expect 

the examiner to check whatever was included on the list for an adequate pre-operational check. 

(Tr. 86). Blanton testified that this process takes five to ten minutes. (Tr. 232-233, 243). Once 

the equipment operator conducted the examination the checklist was kept in the truck and, at the 

end of the shift, he placed the form in the foreman’s mailbox. (Tr. 50, 87, 182, 195, 234). The 

foreman reviewed these forms at home and then filed them in the mine office the next day. (Tr. 

53, 182, 195). Blanton testified that he would also update the record. (Tr. 233). There was no 

mechanic on the second shift and if a defect was found, the equipment operator would fix it 

himself. (Tr. 92, 182-183, 195). If it could not be fixed, it would be parked and a note would be 

left on it so it could be fixed the next day. (Tr. 92, 182-183, 195-196). There were three 

mechanics on the day shift to correct problems. (Tr. 196). Faulkner believed this method was 

inadequate because the foreman was not aware of the pre-shift examination reports until after the 

shift was over. (Tr. 54). However, Chasteen and Blanton testified that the foreman would be 

notified immediately if something needed to be repaired. (Tr. 182, 233). 

In addition to the improper and untimely method of reporting, four specific conditions 

were listed on the citation for not being included in the pre-operational reports. (Tr. 54). The 

first was that five of the six brake chamber pushrods were out of adjustment. (Tr. 54-56). The 

second item listed was that three of the four parking brakes were out of adjustment. (Tr. 55). 

Respondent’s checklist included a notation for brakes. (Tr. 55). 

36 FMSHRC Page 3207
According to Faulkner, Respondent, and most operators, conducted the pre-operational 

check of the brakes by driving the truck onto a slight grade and checking to see if the brakes 

were adequate. (Tr. 57, 77-78, 81, 84). Boggs had both conducted and seen Mosley conduct an 

examination of the lube truck. (Tr. 193-194). To check the brakes, Mosley (and Boggs) would 

look at the gauges for air pressure and then apply the brakes to see if they actually worked. (Tr. 

193). Blanton also conducted examinations and he testified he checked the brakes by putting it 

in gear, easing out the clutch, and seeing if the brakes held. (Tr. 232-233). Andrew Loving, not 

Boggs, had tasked trained Mosley and Blanton on pre-operation checks of the lube truck. (Tr. 

193-194, 201, 232). Boggs’ signature was only included on the documents attesting to the task 

training because a foreman needed to fill out the form. (Tr. 201-202, GX-30). Chasteen was 

familiar with pre-operational examinations but was not familiar with how brakes were checked. 

(Tr. 184-185). He had never observed his drivers conduct an examination. (Tr. 187). 

These methods would not have found the cited conditions with the brakes. (Tr. 55). 

Marshall described these as a low demand situation. (Tr. 131). However, Marshall believed that 

the conditions he observed with the brakes could have been found prior to the accident. (Tr. 

141). The pushrod strokes could have been found if Respondent used two people to check 

brakes or one person with a device to apply the brake. (Tr. 55-56, 142-143, 201). To do this, 

one person would watch the pushrod strokes outside of the truck while another person in the 

cable applied the brakes to 80-90 PSI. (Tr. 56, 142). A measurement would be made before the 

application and then again afterward, showing the pushrod travel. (Tr. 56-57, 142). No 

disassembly of the truck would be needed. (Tr. 56-57, 152). This was how MSHA checks the 

brakes. (Tr. 56). Boggs knew how to measure the pushrod stroke. (Tr. 200-201). He was not 

required to know how to do so under DOT regulations, but had measured the stroke during DOT 

inspections. (Tr. 201). To detect the grease-like material, the wheel or the drum could have 

been removed for inspection. (Tr. 141). In fact, Marshall only saw this material after someone 

removed the wheels from the truck. (Tr. 168). 

Faulkner was not aware of any operators who used the pushrod stroke measurement in a 

pre-shift and would not write a citation for failure to do so. (Tr. 83-86). Faulkner did not do his 

pre-operational checks in this way. (Tr. 84). As long as the brakes were checked according to 

the form, the exam would be sufficient. (Tr. 86). Instead, the basis of the citation was that the 

brakes were compromised and nothing was recorded. (Tr. 85). 

The third item listed was that the seatbelt was improperly installed. (Tr. 57, 148-149). 

Specifically it was mounted on the floor in two places. (Tr. 57-58, 148-149, GX-14, 15, & 16). 

Because of the air ride seats, the seatbelts should have been attached to the seat on one side. (Tr. 

59, 149). This would allow force transmitted in an accident to be absorbed into the floor and for 

the seatbelt to move with the seat. (Tr. 149-150). The incorrect installation would have been 

very uncomfortable for an operator because, in conjunction with the air ride seat, it would have 

presented a choking effect or a cinch on the lap each time the truck met rough terrain. (Tr. 60, 

149-150). Further, the belt would have to restrain the mass of the seat, in addition to the 

operator’s weight. (Tr. 150). Marshall believed that in this particular incident, the improper 

installation could have caused a premature failure of the seatbelt. (Tr. 149-151). Faulkner 

believed proper installation could have lessened the severity of the injury. (Tr. 89, 150-151). 

36 FMSHRC Page 3208
Boggs testified that the mine had a policy requiring a seatbelt to be worn if one was installed. 

(Tr. 201). There was no indication of how long the seatbelt was in this condition. (Tr. 60). 

Inspector Faulkner conceded that MSHA regulations only require seatbelts when there 

was a danger of overturning and rollover and that this truck would not require a seatbelt. (Tr. 60-

61, 88-89). This truck would not be cited for failure to install a seatbelt. (Tr. 89). However, 

Faulkner believed an inoperative seatbelt would still be a safety defect. (Tr. 60-61). It was 

included in the citation because Respondent’s pre-operational checklist had a notation for 

seatbelts, indicating Respondent believed that a seatbelt would affect safety. (Tr. 60-61). 

The fourth item listed was a crack in the windshield that existed prior to the accident. 

(Tr. 61). Inspector Faulkner learned the windshield was cracked in a collision with another piece 

of equipment on a previous shift, possibly on November 19, through interviews with employees, 

but he did not see it. (Tr. 61-62, 89). Chasteen testified that it had occurred a few days prior to 

the accident. (Tr. 187). The crack in the windshield, especially at night with glare from lights, 

could affect visibility. (Tr. 63). However, Inspector Faulkner was not sure of the severity of the 

crack or whether it would affect visibility. (Tr. 63, 90). He did not know if the crack contributed 

to the accident. (Tr. 90). A crack is not necessarily an uncommon thing, however Boggs must 

have thought the crack was severe enough to constitute a hazard because he recorded it on his 

on-shift examination on November 20, 2010. (Tr. 62-64, 90). That was the reason it was 

included in the citation. (Tr. 62-64). Chasteen would have instructed his drivers to record a 

cracked windshield in their pre-operational examinations. (Tr. 187-188). 

These four conditions were not recorded in the pre-operational record. (Tr. 53). This 

failure to include the conditions led to the accident because violations were allowed to exist 

during operation without correction. (Tr. 64). The Secretary submitted several pre-operational 

examination checklists running over 41 pages from 9/16/2010 to 11/22/2010. (Tr. 51, GX-13). 

All of the documents were signed by Blanton (the last one on 11/22/2010) and Mosley (the last 

one on 11/19/2010). (Tr. 51-52). The information included on these forms was kept in a log by 

Respondent. (Tr. 196-198, RX-D). These pre-operational forms indicated that in the weeks 

before the accident, the windshield was in good condition, that the seatbelt was adequate, and 

that the brakes were adequate. (Tr. 53, 55, 63, 77-78). Only one entry, a flat tire, was included 

in the log book for the lube truck from 10/13/2010 to 11/19/2010. (Tr. 197-198). Respondent 

did not provide a checklist for the second shift on 11/22/2010. (Tr. 52). In fact, MSHA officials 

were not sure if a pre-operational examination was conducted on the subject shift, though it was 

possible that the documents were lost or damaged in the accident. (Tr. 52-54, 80). It was also 

possible, given that defects only needed to be recorded if observed, that Mosley had conducted a 

pre-operational examination and simply found no defect. (Tr. 87-88). Regardless, the foreman 

found conditions during on-shift examinations even on days when the pre-operational sheets 

indicated that nothing was wrong with the truck or were when such forms were not available. 

(Tr. 53, 88). Specifically, Foreman Michael Boggs included the cracked windshield on his 

11/20/2010 on-shift. (Tr. 62). Blanton also testified that occasionally equipment would need to 

be serviced during a shift, but that those things were simply fixed and not recorded in the record. 

(Tr. 234-235).

36 FMSHRC Page 3209
MSHA did not tell operators how to do a pre-operational examination, though guidance 

was available. (Tr. 80-81, 91). MSHA resources include guidelines, information on how to 

conduct an examination, and information from other operators. (Tr. 91). Faulkner was not sure 

if there was information about brakes. (Tr. 91-92). Blanton testified that no one from MSHA 

was ever present when he conducted a pre-shift examination of brakes. (Tr. 235). However, he 

had seen MSHA inspectors do so in the same manner that he did: by placing the truck on a small 

incline (if possible), putting it in gear, and then easing out the clutch to see if it held. (Tr. 235-

236). He did see an MSHA inspector conduct a pushrod stroke, though only once in four years. 

(Tr. 243). No one from MSHA ever told Blanton to conduct a pushrod stroke. (Tr. 236, 243-

244). 

The gravity was marked as having occurred and resulting in a fatal injury. (Tr. 64). This 

citation was marked as S&S for the same reasons. (Tr. 65). 

This citation was marked as moderate negligence because the operator knew or should 

have known that the cited conditions existed and were not being reported or corrected. (Tr. 64). 

This condition was terminated when management established a written procedure to 

assure that adequate pre-operational checks were conducted on mobile equipment and to ensure 

that any safety defects identified were corrected prior to operation. (Tr. 65). Termination 

occurred on 2/25/2011 at 8:30 a.m. (Tr. 65). Faulkner was not involved in the abatement 

meetings; those were conducted by the CMIs documented on the 5023 forms, Argus Brock and 

Brad Sears. (Tr. 86, 227, 241). Loving and Blanton attended the retraining and Loving reviewed 

the action plan. (Tr. 225-227, 241, RX-G) The plan was created by Ronnie Brock, a consultant 

for the Respondent’s owner, Joe Bennett, and Hobie Hayes, the surface superintendent for 

Respondent. (Tr. 227-229, 243-244). Hayes conducted the training. (Tr. 227, 229). According 

to Loving and Blanton, there was no mention of measuring the pushrod strokes on the truck in 

the training. (Tr. 227, 241). 

At the time of the accident, Terry Loving was the superintendent for Respondent’s 

underground mines. (Tr. 220, 228). He was also the owner of two contracting firms, Jean Coal 

Company and Regional Contracting. (Tr. 219, 221-222, 228). Jean did surface mining for the 

companies controlled by Bennett, Blue Diamond Coal Company, and Arch Mineral. (Tr. 219). 

Respondent paid Jean by the ton. (Tr. 221). Regional Contracting was an employee leasing 

business and all of Jean’s employees were on the Regional payroll. (Tr. 222). While the instant 

mine was a surface mine, Loving was familiar with it. (Tr. 219-220). In fact, Jean Coal was a 

contract miner at the mine and Loving visited the location every day.17 (Tr. 219-220). At the 

time of the hearing, this was Jean’s only surface job. (Tr. 221). MSHA was aware that 

Respondent’s employees were paid through a different company. (Tr. 43). However, Inspector 

Faulkner testified that Mosley was Respondent’s employee. (Tr. 24). He was not sure if Jean or 

Regional would meet the qualifications to be identified by MSHA as a contractor. (Tr. 43). 

 17 Loving testified at length as to his daily routine. (Tr. 220-221). He would travel to 

Respondent’s underground mine in the morning and conduct pre-shifts and maintenance. (Tr. 

220). At 4:00 he would go to the surface job for two or three hours and travel with the foreman. 

(Tr. 220-221). He usually arrived at shift change so he could talk to the dayshift foreman and 

employees to see how operations were going. (Tr. 221). 

36 FMSHRC Page 3210
Loving conceded that at the time of the accident, Jean did not have its own contractor ID. (Tr. 

228). However, at the hearing it had a mine ID number. (Tr. 228). Regional, which Loving 

testified employed Mosley, had a contractor ID at the time of the accident. (Tr. 229-230). 

FINDINGS AND CONCLUSIONS 

I. CONTENTIONS OF THE PARTIES REGARDING CITATION NO. 

8365953 

With respect to Citation No. 8365953, the Secretary asserts that Respondent violated 30 

C.F.R. §77.1607(b), that this violation resulted in a fatal injury to one miner, that the violation 

was S&S, and that it resulted from moderate negligence. (GX-10)(Secretary’s Post-Hearing 

Brief at 16-18). The Secretary also asserts that a penalty of $52,500.00 is appropriate. 

(Secretary’s Post-Hearing Brief at 28-30) 

 Respondent concedes that it violated the cited standard. (Respondent’s Post-Hearing 

Brief at 6). However, it avers that its actions would be better characterized as showing “low” or 

“no” negligence. (Id. at 6-7). Further, Respondent believes a reduction in the proposed penalty 

is appropriate. (Id. at 17-18). 

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING 

CITATION NO. 8365953 

The findings of fact in this, and all other sections of this decision, are based on the record 

as a whole and the Administrative Law Judge’s careful observation of the witnesses during their 

testimony. In resolving any conflicts in the testimony, the Administrative Law Judge has taken 

into consideration the interests of the witnesses, or lack thereof, and consistencies, or 

inconsistencies, in each witness’s testimony and between the testimonies of the witnesses. In 

evaluating the testimony of each witness, the Administrative Law Judge has also relied on his 

demeanor. Any failure to provide detail as to each witness’s testimony is not to be deemed a 

failure on the Administrative Law Judge’s part to have fully considered it. The fact that some 

evidence is not discussed does not indicate that it was not considered. See Craig v. Apfel, 212 

F.3d 433, 436 (8th Cir. 2000) (administrative law judge is not required to discuss all evidence and 

failure to cite specific evidence does not mean it was not considered). 

1. Respondent Violated 30 C.F.R. §77.1607(b).

On February 25, 2011, Inspector Faulkner issued a 104(a) Citation, No. 8365953, to 

Respondent. Section 8 of that Order, Condition or Practice, reads as follows: 

As the result of a fatal accident investigation at the Rex Coal Company, Inc.’s 

Rex Strip #1, it has been determined that the operator of the 1988 Maroon Mack 

tandem lube truck, Model DM-690-SX, VIN #1M2B198C2JW002173, failed to 

maintain control as the lube truck was descending the mine haul road, connecting 

the Highsplint and Lowsplint coal seam work areas. The Section of mine haul 

road measured to have an overall grade of 22 percent. Mobile equipment 

36 FMSHRC Page 3211
operators shall have full control of the equipment while it is in motion. The 

overturned truck resulted in fatal injuries to the operator. 

(GX-10). 

 The cited standard, 30 C.F.R. §77.1607(b) (“Loading and haulage equipment; 

operation”), provides the following: 

(b) Mobile equipment operators shall have full control of the equipment while it is 

in motion. 

30 C.F.R. §77.1607(b). 

 “In order to establish a violation of section 77.1607(b), the Secretary must only 

demonstrate, by a preponderance of the evidence, that the operator failed to maintain full control 

of a piece of equipment while it was in motion.” Clintwood Elkhorn Mining Co. Inc., 35 

FMSHRC 365, *4 (Feb. 2013). The Secretary is not required to prove any causal or contributing 

factor for that loss of control; the fact that a piece of equipment was not in control is sufficient to 

meet the standard. Id. Further, in Dynamic Energy, Inc., the Commission affirmed Judge 

Bulluck’s determination that a plain meaning for the term “full control” exists within the scope 

of this standard. 32 FMSHRC 1168,1172 (Sept. 2010). Specifically, the Commission noted: 

Section 77.1607(b) requires a mobile operator to have “full control [of the 

equipment] while it is in motion.” “Full” is defined as “being at or of the greatest 

or highest degree” and the “greatest or highest potential.” Webster's Third New 

International Dictionary 919 (1993). “Control” is defined as having “the power 

... to guide or manage.” Id. at 496... Based on the terms of the standard, the 

judge's construction of requiring the highest degree of control to guide or manage 

a vehicle appears well supported by the plain language. Hence, we conclude that 

the judge's determination that full control means having “complete power to guide 

or manage” accords with the plain meaning of the standard. 

Id. Therefore, the question at issue is whether the equipment operator, Mosley, failed to 

maintain complete power to guide or manage the truck while it was in motion, regardless of the 

cause of that failure. 

At hearing, Secretary’s counsel presented credible evidence to show that Mosley failed to 

maintain complete control over the lube truck. Inspector Faulkner testified that Mosley’s truck 

traveled down the roadway at greater than normal speeds (while in neutral), encountered a berm, 

rocked back and forth, and then overturned. (Tr. 27-28, 31-32, 67-69, 80). Further, Marshall 

testified that Mosley attempted to control the truck with the brakes but was unable to do so. (Tr. 

14, 144-146, 155). Even Respondent’s witnesses testified that Mosley did not appear to be 

capable of guiding or managing the truck as it descended the hill. (Tr. 208-210). All relevant 

witnesses agree that, as a result of this lack of control, the lube truck overturned. (Tr. 27, 31, 68-

69, 76, 209). No evidence was presented that could be used to show that the truck was under 

control. 

36 FMSHRC Page 3212
In its brief, Respondent conceded that, based on the evidence provided at hearing, the 

violation was validly issued. (Respondent’s Post-Hearing Brief at 6). In light of this fact, and 

the evidence presented, I find that Respondent violated 30 C.F.R. §77.1607(b). 

2. The Violation Resulted in a Fatal Injury to One Miner And Was Significant And 

Substantial In Nature 

Inspector Faulkner marked the gravity of the cited danger in Citation No. 8365953 as 

having resulted in a “Fatal” Injury to one person. (GX-10). 

The Mine Act requires that the “gravity of the violation” be considered in assessing a 

penalty. 30 U.S.C. §820. The Secretary has promulgated a three-factor inquiry to determine the 

gravity of a citation for purposes of determining the penalty. Those factors are: 

[T]he likelihood of the occurrence of the event against which a standard is 

directed; the severity of the illness or injury if the event has occurred or was to 

occur; and the number of persons potentially affected if the event has occurred or 

were to occur. 

30 C.F.R. §100.3(e). 

 The event against which the instant standard, 30 C.F.R. §77.1607(b) is directed is injury 

resulting from loss of control of mobile loading and haulage equipment. (Tr. 42). As discussed 

supra, the evidence shows that Mosley was unable to control the lube truck as it descended the 

hill and, as a result, the truck overturned. (Tr. 42, 66-67). In short, the danger the cited standard 

was designed to prevent was realized. Further, this incident, unfortunately, actually resulted in 

the gravest possible outcome: the death of a miner, Rhett Mosley. (Tr. 24-25, 179). Therefore, I 

find that the cited violation resulted in fatal injuries to one miner. I will now turn to the S&S 

designation in this matter. 

Well-settled Commission precedent sets forth the standard used to determine if a 

violation is S&S. A violation is S&S “if, based upon the particular facts surrounding the 

violation there exists a reasonable likelihood that the hazard contributed to will result in an injury 

or illness of a reasonably serious nature.” Cement Div., National Gypsum Co., 3 FMSHRC 822, 

825 (April 1981). The Commission later clarified this standard, explaining: 

In order to establish that a violation of a mandatory safety standard is significant 

and substantial under National Gypsum, the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard – that is, a measure of danger to safety – contributed to by the violation; 

(3) a reasonable likelihood that the hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury in question will be of a reasonably 

serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984). 

36 FMSHRC Page 3213
With respect to the first element, the underlying violation of a mandatory safety standard, 

it has already been established that Respondent violated 30 C.F.R. §77.1607(b). 

The second element of Mathies, a discrete safety hazard – that is a measure of danger to 

safety – contributed to by the violation – was also met. As discussed supra, the cited condition 

contributed to the danger of an accident involving mobile loading and haulage equipment. 

Mosley’s inability to control his equipment resulted in the truck overturning. (Tr. 42, 66-67). 

That incident was undoubtedly a safety hazard. 

The third element of the Mathies test – a reasonable likelihood that the hazard contributed 

to will result in an injury – was also met. The preponderance of the evidence establishes that the 

hazard was not only reasonably likely to contribute to an injury, but in fact resulted in one. 

Under Mathies, the fourth and final element that the Secretary must establish is that there 

was a “reasonable likelihood that the injury in question will be of a reasonably serious nature.” 

Mathies Coal Co., 6 FMSHRC at 3-4; U.S. Steel, 6 FMSHRC 1573, 1574 (July 1984). As 

discussed supra, the injury at issue here was extraordinarily grave as Rhett Mosley was killed. 

Therefore, the fourth prong of Mathies is met. 

As a result of these factors, I find that the Secretary proved the violation was S&S by a 

preponderance of the evidence. 

3. Respondent’s Conduct Displayed “Moderate” Negligence.

In the citation at issue, Inspector Faulkner found that the operator’s conduct was 

moderately negligent in character. (GX-10). 

Standard 30 C.F.R. §100.3(d) provides the following: 

(d) Negligence. Negligence is conduct, either by commission or omission, which 

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

against the risks of harm. Under the Mine Act, an operator is held to a high 

standard of care. A mine operator is required to be on the alert for conditions and 

practices in the mine that affect the safety or health of miners and to take steps 

necessary to correct or prevent hazardous conditions or practices. The failure to 

exercise a high standard of care constitutes negligence. The negligence criterion 

assigns penalty points based on the degree to which the operator failed to exercise 

a high standard of care. When applying this criterion, MSHA considers mitigating 

circumstances which may include, but are not limited to, actions taken by the 

operator to prevent or correct hazardous conditions or practices. 

 In 30 C.F.R. §103(d), Table X, the category of high negligence is described thusly: “The 

operator knew or should have known of the violative condition or practice and there are no 

mitigating circumstances.” Conversely, moderate negligence is shown when “[t]he operator 

knew or should have known of the violative condition or practice, but there are some mitigating 

36 FMSHRC Page 3214
circumstances.” Low negligence is reserved for situations where there are “considerable” 

mitigating circumstances. 

With respect to knowledge, well-settled Commission precedent recognizes that the 

negligence of an operator’s agent is imputed to the operator for penalty assessments and 

unwarrantable failure determinations. See Whayne Supply Co., 19 FMSHRC 447, 451 (Mar. 

1997); Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194-197 (Feb. 1991); and Southern 

Ohio Coal Co., 4 FMSHRC 1459, 1463-1464 (Aug. 1982). An agent is defined as someone with 

responsibilities normally delegated to management personnel, has responsibilities that are crucial 

to the mine’s operations, and exercises managerial responsibilities at the time of the negligent 

conduct. Martin Marietta Aggregates, 22 FMSHRC 633, 637-638 (May 2000) see also 30 

U.S.C. §802(e) (an agent is “any person charged with responsibility for the operation of all or 

part of a...mine or the supervision of the miners in a...mine.”). 

With respect to the instant violation, the evidence shows that Respondent’s foreman 

should have known that the truck could not be controlled. As will be discussed at length 

regarding Citation Nos. 8365954 and 8365953 infra, Marshall testified that the brakes on the 

truck involved in this accident were totally inadequate for use at the mine. (Tr. 46-47, 79, 139, 

146, 148). Respondent’s agents, including witnesses Chasteen and Boggs, were tasked with 

coordinating maintenance of mobile equipment. (Tr. 50, 87, 175, 182, 195, 234). It was the 

responsibility of Respondent’s foremen to ensure that unsafe equipment was repaired or removed 

from service. (Tr. 182, 233). In this case, inadequate brakes on the lube truck were not repaired 

and, when Mosley foreseeably used that truck on a steep incline, the brakes failed, resulting in a 

loss of control. (Tr. 54-56). Therefore, Respondent’s negligence led to the cited accident. 

Respondent’s negligence is somewhat mitigated by the fact that the inadequate brakes 

were not marked on the pre-operational examination forms. (Tr. 53-54). Mosley (and the other 

truck driver, Blanton) were tasked with actually performing these pre-operational examinations. 

(Tr. 50, 53, 86). These men were not agents of Respondent. Because the inadequate brakes were 

not included on any of the submitted pre-operational forms, Respondent’s foreman may have, 

inaccurately, believed that the brakes were sufficient. While they should have known the brakes 

were inadequate, their failure to ensure that proper brake maintenance had been performed was 

mitigated. Therefore, I find that a finding of “moderate” negligence was appropriate. 

Respondent argued that it was not negligent or that there was considerable mitigating 

circumstances necessitating a finding of “low” negligence. (Respondent’s Post-Hearing Brief at 

6-7). However, Respondent’s arguments are not compelling. 

First, Respondent argues that Mosley was solely responsible for the accident. 

(Respondent’s Post-Hearing Brief at 7). It asserts that Mosley’s actions in failing to place the 

truck in gear directly led to his death. (Id.). It also notes that because Mosley was solely 

responsible, it could not have been aware of the conditions surrounding the accident; all relevant 

actions occurred within the truck in the seconds before the accident. (Id.). Therefore, it argues, 

Mosley’s actions were not known or imputable to Respondent. (Id.). Respondent further avers 

that none of its actions before the accident in any way contributed to the accident and that there 

was nothing it could have done to prevent the accident. (Id.). In short, Respondent asserts that 

36 FMSHRC Page 3215
any negligence in this matter occurred solely as a result of Mosley’s actions and that that 

negligence can, in no way, attach to the company. 

Respondent is correct that Mosley’s actions in placing the truck in neutral likely 

contributed to the danger here and that, as a non-supervisor, his actions were not imputable to 

Respondent. However, that is largely irrelevant. This accident was not primarily caused by 

Mosley’s actions. As the Secretary’s expert witness on brakes testified, even if the transmission 

was in neutral, the brakes should have been capable of maintaining control of the truck. (Tr. 

148, 163-164). While Mosley’s descent may have been safer (perhaps entirely without incident) 

if the truck were in gear, Mosley should have been able to maintain control of the truck solely 

with the brakes. It was Respondent’s responsibility to ensure that Mosley was mechanically 

capable of controlling the truck and its failure to meet that responsibility was negligent. 

Respondent also argued that Mosley was not Respondent’s employee, that it did not 

provide supervision to Mosley, and that none of Respondent’s employees were present at the 

time of the accident. (Respondent’s Post-Hearing Brief at 7-8). It even argued that there was 

“no proof” Respondent owned the truck. (Id. at 7). It is well-established under Commission 

case law that that Secretary may hold an operator liable for all violations which occur at its mine, 

whether committed by its employees or contractors. See Mingo Logan Coal Company, 19 

FMSHRC 246, 249 (February 1997), aff'd 133 F.3d 916 (4th Cir. 1998) (table)(citations 

omitted); Secretary v. Twentymile Coal Company, 456 F. 3d 151 (D.C. Cir. 2006); Speed 

Mining, Inc. v. FMSHRC, 528 F.3d 310 (4th Cir. 2008). The Secretary may cite an operator, a 

contractor, or both for violations committed by the contractor. Mingo Logan Coal Co., supra

(citing Consolidation Coal Co., 11 FMSHRC 1439, 1443 (August 1989)). “An operator 

challenging the Secretary's enforcement discretion bears a heavy burden of establishing that there 

is no evidence to support the Secretary's decision or that the decision is based on a 

misunderstanding of the law.” Vandalia Resources, Inc., 25 FMSHRC 390, 396 (Jul. 2003)(ALJ 

Melick) citing Extra Energy, Inc., 20 FMSHRC 1, 5 (January 1998). 

In the instant matter, Respondent was responsible for the safety and health of the miners 

working at Rex Strip #1. Even if none of the miners working at the mine were Respondent’s 

employees, Respondent was still required to ensure a safe working environment. As the Fourth 

Circuit noted, “[p]recluding owner-operator liability for independent contractor violations would 

encourage owners to use contracts as a means of insulating themselves from safety regulations.” 

Speed Mining, Inc., 528 F.3d at 315. That is essentially what Respondent is attempting to do 

here: hire only contractors and then claim that it could not “know” about safety issues at its 

mines because it had no employees. This appears to be a transparent attempt to circumvent the 

Mine Act. 

Also, Respondent’s assertion that it did not have any employees, equipment, or control 

over the mine it ostensibly owned does not match the evidence. The level of separation between 

the three companies involved (Respondent, Jean, and Regional) was more ambiguous than 

Respondent implies. Specifically, the owner of Regional and Jean, Terry Loving, was also the 

superintendent of Rex Strip #1 mine and an employee of Respondent. (Tr. 219-222, 228). 

Loving supervised the work of the foreman and was responsible (as both the owner of two 

companies and an employee of another) for ensuring the safe working conditions. Loving, as an 

36 FMSHRC Page 3216
agent of Respondent, should have taken actions to ensure that all equipment was safe and the 

foremen were properly supervising maintenance.18 As a result, the nature of the contractor 

relationships in this matter is irrelevant and in no way mitigates Respondent’s negligence. 

4. Penalty

In this matter, the Secretary proposed a penalty of $52,500.00 for Citation No. 8365953. 

The Commission has affirmed that ALJs are not bound the Secretary’s proposals. Sec. v. 

Performance Coal Co., (Docket No. WEVA 2008-1825 (8/2/2013) (see also 30 U.S.C. §820(i) 

and 29 C.F.R. §2700.30(b)). The Commission also held that, although there is no presumption 

of validity given to the Secretary’s proposed assessments, substantial deviation from the 

Secretary’s proposed assessments must be adequately explained using §110(i) criteria. (Id. at p. 

2). (see also Cantina Green, 22 FMSHRC 616, 620-621 (May 2000)). However, having 

affirmed the Secretary’s determinations in all respects, no deviation is necessary. In fact, the 

proposed penalty is appropriate under the Act. 

Respondent argued that the penalty should be lessened in accordance with the mitigating 

circumstances it raised in regards to negligence. (Respondent’s Post-Hearing Brief at 17). 

Having found that no change in the negligence designation was necessary, I decline to modify 

the penalty. Further, Respondent noted that it had little history of violations or extensive fines 

either at this mine or any other mines. (Id. at 18). In fact, it noted that it had a total, at all of its 

operations, 277 cited violations for a total proposed penalty of $98,047.00. (Id.). While I 

considered Respondent’s violation history in approving this penalty, it was not my chief concern. 

In this matter, the large penalty is justified primarily by the intense gravity of the accident. Rhett 

Mosley was killed while at work. Respondent was negligent and responsible. A substantial 

penalty is justified both to reflect that gravity and to provide an incentive to Respondent to care 

more deeply for the miners it employs. 

Therefore, Respondent is hereby ORDERED to pay a civil penalty in the amount of 

$52,500.00 with respect to this violation. 

III. CONTENTIONS OF THE PARTIES REGARDING CITATION NO. 

8365954 

With respect to Citation No. 8365954, the Secretary asserts that Respondent violated 30 

C.F.R. §77.1605(b), that this violation resulted in a fatal injury to one miner, that the violation 

was S&S, and that it resulted from moderate negligence. (GX-11)(Secretary’s Post-Hearing 

Brief at 16-18). The Secretary also asserts that a penalty of $52,500.00 is appropriate. 

(Secretary’s Post-Hearing Brief at 28-30) 

 18 Beyond the legal ramifications of the principal-contractor relationship described here, 

from a practical standpoint the distinction was meaningless. Terry Loving was both an agent of 

Respondent and a contractor of Respondent. When Loving gave an order to an employee at Rex 

Strip #1 mine, was he doing so as Owner of Regional? Owner of Jean? Or Employee of 

Respondent? How is a miner (or a judge) supposed to make such a fine distinction? I find that 

making such a distinction is both impossible and unnecessary. 

36 FMSHRC Page 3217
Respondent asserts that it did not violate the cited standard. (Respondent’s Post-Hearing 

Brief at 8-11). It further avers that if a violation existed it was not S&S and that its actions 

would be better characterized as showing “low” or “no” negligence. (Id. at 11-15) Further, 

Respondent believes a reduction in the proposed penalty is appropriate. (Id. at 17-18). 

IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING 

CITATION NO. 8365954 

1. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The 

Evidence That Respondent Violated 30 C.F.R. §77.1605(b).

On February 25, 2011, Inspector Faulkner issued a 104(a) Citation, No. 8365954, to 

Respondent. Section 8 of that Order, Condition or Practice, reads as follows: 

As a result of a fatal accident investigation at Rex Coal Company, Inc.’s, Rex 

Strip #1, it has been determined that the brakes were inadequate on the 1988 

Maroon Mack tandem lube truck, Model DM-690-SX, VIN 

#1M2B198C2JW002173. The brake evaluations indicated that five of the six 

service brakes, along with three of the four parking brakes were ineffective or 

compromised. Five of the six service brake chamber pushrod strokes for the truck 

exceeded the maximum allowable pushrod stroke readjustment limit. This 

condition contributed to the occurrence of this fatal accident. 

(GX-11). 

 The cited standard, 30 C.F.R. §77.1605(b) (“Loading and haulage equipment; 

installations”), provides the following: 

Mobile equipment shall be equipped with adequate brakes, and all trucks and 

front-end loaders shall also be equipped with parking brakes. 

30 C.F.R. §77.1605(b). 

The Commission has held that to prove a violation of this standard, the Secretary is not 

required to determine the precise cause of braking inadequacy or to provide an elaborate 

mechanical explanation for it. Wilmot Mining Company, 9 FMSHRC 684, 688 (Apr. 1987). If 

the Secretary is able to establish a “demonstrated inadequacy,” under “normal operating 

capacity” then the burden is met. Id. In Wilmot, the Commission upheld a violation under 30 

C.F.R. §77.1605(b) when a piece of equipment that should have braked within five to ten feet 

under normal operating capacity instead stopped at 36 feet or more. Id. This was upheld even 

though the technical cause of the excessive braking distance was uncertain. Id. 

Without citing to Wilmot, Judge Feldman articulated a standard that is helpful for 

determining if there was a demonstrated inadequacy in brakes, stating the issue was whether, “a 

truck’s service brake system is capable of stopping and holding the vehicle with its typical load 

36 FMSHRC Page 3218
on the maximum grade it typically travels.” Nally & Hamilton Enterprises, Inc., 31 FMSHRC 

689, 695 (June 2009)(ALJ Feldman). 

In the instant matter, Inspector Faulkner credibly testified that the truck weighed about 

55,000 pounds when loaded. (Tr. 101-102). Further, he testified that the truck was loaded with 

lube, diesel, and other industrial products at the time of the accident. (Tr. 26, 40). The evidence 

showed that Mosley drove the truck down a 22% incline (25% at the top). (Tr. 29-30, 102-103). 

Further, Respondent’s witnesses testified that they regularly traveled on this same roadway. (Tr. 

185, 222-223, 235-237, 240, 243). Marshall credibly testified that while descending the incline, 

Mosley applied the brakes. (Tr. 151). Significantly, he noted that the brakes should have been 

able to control the truck under the conditions present at that time. (Tr. 148, 163-164). However, 

the brakes were unable to control the truck and a fatal accident occurred. (Tr. 42, 66-67). Taken 

together, this evidence shows that the brakes here were demonstrably inadequate. The service 

brakes were unable to stop the truck under its typical load on a grade that it typically traveled. 

As a result, I find that Respondent violated 30 C.F.R. §77.1605(b). 

 The Secretary presented copious, credible evidence to establish the reasons why and to 

quantify the degree to which the cited brakes were inadequate. Specifically, Marshall testified 

that he physically examined the brakes and determined their level of wear and the pushrod stroke 

adjustment. (Tr. 114). Based on his analysis, he determined that the brakes were out of 

adjustment and also contaminated with a grease-like substance. (Tr. 119-133, 139-140, 158-

160). He determined that the braking capacity was likely 20% and no more than 50%. (Tr. 143, 

146-147). He further opined that the brakes needed to be at least at 75% capacity for the 

conditions present. (Tr. 163-164). While this evidence is instructive, it is not strictly necessary 

for my determination of whether Respondent violated the instant standard. The brakes were 

demonstrated to be inadequate, the exact cause and technical degree of this inadequacy, as the 

Commission noted in Wilmot, is not needed. This evidence is relevant primarily because it 

shows the mechanical condition of the brakes conforms to the practical inadequacy observed. 

Respondent argued that the truck was not being operated under normal mining 

conditions. (Respondent’s Post-Hearing Brief at 8). It cited Nally &Hamilton, for the 

proposition that the adequacy of the trucks brakes must be determined under normal mining 

conditions. (Id. at 8-9). Specifically, Respondent noted that this truck was not in gear and that, 

under normal mining conditions, it would be. (Id. at 9). It noted that even Faulkner and 

Marshall conceded that if the truck was in gear, the brakes would have been adequate to stop the 

truck. (Id. at 9-10). It argues that the brakes were sufficient for their intended purpose and that it 

should not be held responsible for any unintended use. (Id. at 10). In short, Respondent argues 

that “normal mining conditions” are those at which all other safety precautions are being 

followed. 

Respondent’s argument fails for several reasons. First, Respondent seriously 

misapprehends the meaning of “normal mining conditions” in the context of the cited standard. 

Respondent seems to believe that “normal mining conditions” means that the braking capacity 

should be considered while presuming otherwise flawless conditions at the mine. Essentially, 

Respondent asks that instead of considering the facts presented, I consider an imaginary mine 

wherein everything is “normal” except for the brakes. “Normal”, in Respondent’s conception 

does not consider other problems, issues, or mistakes that are likely to, or even foreseeably 

36 FMSHRC Page 3219
could, occur at an operating mine. I decline the invitation to engage in complex, fanciful 

hypotheticals. Instead, I look to the standard, relevant case law, and the facts. 

As the Commission stated in Wilmot (and Judge Feldman echoed in Nally & Hamilton), 

the relevant factors to consider in determining whether brakes are adequate are their efficacy 

under typical load and on typical grades. Therefore, in the context of the cited standard, these 

are the determining characteristics of “normal mining conditions.” In the instant case, a truck 

was under normal load on an incline it normally traveled. The driver attempted to engage the 

brakes, but they were not adequate to stop the truck. (Tr. 14, 151-152). As a result, under 

relevant normal mining conditions, the brakes were inadequate. 

Second, Respondent places far too much reliance on the fact that the truck was not in 

gear. It is true that all of the witnesses who spoke on the issue testified that they would not take 

the truck down the incline in neutral. (Tr. 70, 76, 198-199, 240). However, mines are dynamic, 

industrial working environments with many hazards that, while not expected, are foreseeable. 

Here, it was foreseeable that a driver would descend the incline out of gear or that the truck 

would accidentally slip out of gear. In such a foreseeable situation, the driver would need to rely 

on the brakes. As was shown here, the driver was unable control the truck with only the brakes 

and therefore, they were inadequate. 

More importantly, the standard and relevant case law do not state anything about other 

mechanical features of the truck. The question is whether the brakes can hold or stop the truck 

under normal load and on a normal grade, not if the brakes and transmission acting together can 

do so. As Marshall testified, adequate service brakes alone would have been able to stop the 

truck even if the truck was not in gear. (Tr. 148, 163-164). Here there was essentially a test of 

whether the brakes alone could stop the lube truck under normal load and on normal grade and 

the brakes failed. Unfortunately, it was not a test. 

At its most basic, the issue presented here is that the facts have clearly established that 

two factors went into this accident. First, the truck was in neutral. Second, the truck had 

inadequate brakes. Either one of these factors was insufficient, on its own, to cause the accident. 

Respondent’s argument seems to be that because one of those factors (the neutral truck) was not 

its responsibility that it can now evade responsibility for the other factor, over which it had 

control. However, there is no reason, legal or otherwise, to allow that result. Respondent must 

meet its responsibilities even if others, arguably, have not. This citation is valid. 

2. The Violation Resulted in a Fatal Injury to One Miner And Was Significant And 

Substantial In Nature 

Inspector Faulkner marked the gravity of the cited danger in Citation No. 8365954 as 

having resulted in a “Fatal” Injury to one person. (GX-11). These determinations are supported 

by a preponderance of the evidence. 

 The event against which the instant standard, 30 C.F.R. §77.1605(b) is directed is an 

accident or injury resulting from inadequate brakes on mobile equipment. (Tr. 46). As discussed 

supra, the Secretary’s witnesses credibly testified that the brakes installed on the lube truck were 

36 FMSHRC Page 3220
inadequate. (Tr. 139, 146, 148). In particular, the brakes were unable to stop the truck as it 

descended a 22% grade under normal load. (Tr. 139, 146-148, 156, 163-165). Further, the 

brakes were technically insufficient with respect to maintenance and pushrod adjustment. (Tr. 

119-133, 139-140, 158-160). As a result of these inadequate brakes a fatal injury occurred to 

one miner, Rhett Mosley. (Tr. 48). Therefore, the evidence supports and I affirm the Secretary’s 

findings with respect to gravity. 

With respect to S&S, the first element - the underlying violation of a mandatory safety 

standard - it has already been established that Respondent violated 30 C.F.R. §77.1605(b). 

With respect to the second element of Mathies, a discrete safety hazard – that is a 

measure of danger to safety – contributed to by the violation – was also met. As discussed 

supra, the cited condition contributed to the danger of an accident involving mobile equipment. 

The brakes were unable to stop or control the truck as it descended the hill. (Tr. 139, 146-148, 

156, 163-165). This inability to control the truck undoubtedly contributed to a discrete safety 

hazard, in this matter an accident involving mobile equipment. 

The third element of the Mathies test – a reasonable likelihood that the hazard contributed 

to will result in an injury – was also met. In this matter, the hazard contributed to was realized 

and an injury occurred as a result. Therefore, the third prong of Mathies is met. 

The fourth element -that the injury be of a reasonably serious nature - was also met. 

Unfortunately, the actual injury sustained was a fatal injury to Rhett Mosley. (Tr. 48). As a 

result, the fourth prong of Mathies is met. 

As a result of these factors, I find that the Secretary proved the violation was S&S by a 

preponderance of the evidence. 

Respondent argued that the cited condition should not be assessed as S&S because there 

was no “substantial evidence,” to support such a finding. (Respondent’s Post-Hearing Brief at 

13 citing Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989)(citations 

omitted)). To wit, Respondent asserts that the determination of S&S must be considered in light 

of “continued normal mining operations,” and that, in this situation, there were “abnormal” 

mining conditions. (Id. at 14 citing United States Steel Mining Company, Inc., 7 FMSHRC 

1125, 1130 (Aug. 1985)). The abnormal condition cited by Respondent was the driver losing 

control of the truck by operating in neutral. (Id.). It noted that Marshall stated the truck should 

have been driven in gear. (Id.) It further opined that Marshall conceded that if the truck were in 

gear that the brakes would have controlled the vehicle. (Id. at 14-15). Therefore, it argues that 

the condition of the brakes did not in any way contribute to this accident and that Mosley’s 

actions alone caused his death. (Id. at 15). 

Respondent’s understanding of “continued normal mining operations” is deeply flawed. 

When a judge is tasked with determining whether a citation is S&S in terms of “continued 

normal mining operations” the question is whether, in the future, a hazard will exist if conditions 

continue in the same manner. For example, in the case cited by Respondent, the Commission 

considered a citation for violation of a ventilation plan. United States Steel Mining Co., Inc., 7 

36 FMSHRC Page 3221
FMSHRC at 1126. There, the Commission determined the citation was S&S because the 

violation of the ventilation plan was reasonably likely to result in a methane explosion. Id. at 

1129-1130. It made this finding despite the fact that at the time of the violation, the methane 

levels at the mine were well-below the explosive range. Id. at 1130. This was because under 

“continued normal mining operations” a rapid build-up of methane could reasonably be 

expected. Id. Further, under continued normal mining operations, a continuous miner would be 

reasonably expected to cause an ignition. Id. 

Therefore, when considering “continued normal mining operations” the judge determines 

what could be reasonably expected in the future, without assuming any intervening, unscheduled 

abatement. Sometimes, as in the U.S. Steel case described above, this analysis results in the 

judge finding that while a hazard does not currently exist, one is reasonably expected in the 

future. Sometimes, the analysis results in a finding that a current violation could not contribute 

to a hazard or would resolve itself before a hazard could occur in the future. 

However, the analysis of “continued normal mining operations” never requires a judge to 

ignore presently existing hazards because those hazards are not “normal.” In this case, there 

were inadequate brakes, as described supra. This condition contributed to the hazard at issue 

here and that hazard was realized. I do not need to imagine a hypothetical truck that was in gear 

because the Respondent believes that such a hypothetical truck would be more normal. When, as 

here, a hazard is realized and an accident occurs there is no need to look into the future to 

determine what would be reasonably expected. The facts speak for themselves.19

Finally, the issue of the truck being in gear is a distraction in this matter. Under the 

Mathies formulation the issue is whether a violation contributes to a safety hazard. In this matter 

the truck had inadequate brakes. (Tr. 139, 146, 148). It was also being driven in neutral. (Tr. 

69-71, 80, 105-106). Both of these conditions contributed to the hazard here. The hazardous 

contribution of one condition does not negate the hazardous contributions of any other 

conditions. 

3. Respondent’s Conduct Displayed “Moderate” Negligence

In the citation at issue, Inspector Faulkner found that the operator’s conduct was 

moderately negligent in character. (GX-11). The evidence supports this designation. 

With respect to knowledge, the factual situation presented here is substantially similar to 

that in Citation No. 8365954. Specifically, a supervisor within in the definition provided in 30 

U.S.C. 802(e) and Martin Marietta Aggregates, supra, should have known that the brakes were 

 19Anything more than cursory consideration of Respondent’s argument exposes its 

inherent absurdity. Respondent argues that this situation was not “normal” because the truck 

was not in gear. But why stop there? “Normally” brakes are well maintained and adequate for 

use. Therefore, under Respondent’s conception of normal, this citation could not be S&S 

because the lube truck would normally have reliable brakes. Why consider the actual truck when 

we have a perfectly adequate imaginary one? In fact, under Respondent’s formulation, any 

hazard would be an “abnormal” mining condition that could not give rise to an S&S designation. 

Such an analysis cannot be seriously considered. 

36 FMSHRC Page 3222
inadequate. As will be discussed infra, Respondent, through its foremen, was required under 

relevant standards as well as company policy, to ensure the adequacy of the brakes by 

supervising pre-operational examinations. Marshall testified that the condition of the brakes was 

readily ascertainable through examination of the pushrod stroke. (Tr. 55-56, 142-143, 201). 

Further, as has already been shown, the truck would not have been capable of stopping on a 

typical grade while under a typical load. Therefore, the condition would have been discovered 

on an adequate practical examination.20 However, none of Respondent’s employees ever 

determined the condition. (Tr. 53-54). The foremen’s conduct in failing to ensure adequate 

brakes is imputed to Respondent. Whayne Supply Co., supra; Rochester & Pittsburgh Coal Co., 

supra; and Southern Ohio Coal Co., supra. 

Having found the requisite knowledge, the next issue is whether there were any 

mitigating circumstances. The evidence showed that the brakes had been adjusted on October 

25, 2010. (Tr. 47, 223, RX-F). While this was nearly a month before the accident, it does show 

that Respondent took some effort to ensure the brakes were adequate. Further, the brakes were 

sufficient when the truck was in gear and had functioned adequately while in gear earlier on the 

day of the accident. (Tr. 76, 179, 186, 211-213). This might have allowed Respondent to 

erroneously, but not completely unreasonably, believe the brakes were adequate. Having found 

that there were some mitigating circumstances, I affirm the Secretary’s designation of 

“moderate” negligence. 

Respondent argued that it was entirely without negligence or, at most, there were 

substantial mitigating circumstances. (Respondent’s Post-Hearing Brief at 15-16). In addition to 

the October 25 brake adjustment and the fact that the brakes functioned earlier in the day, 

Respondent raised several other issues. (Id.). In particular, Respondent noted that the brakes 

were adequate under “normal mining conditions.” (Id. at 16). This argument is rejected for the 

same reasons it was rejected regarding S&S, supra. The accident at issue here occurred under 

“normal mining conditions,” and there is no reason to consider a theoretical scenario where the 

circumstances are more favorable to Respondent. 

Respondent also argued that the method suggested by the Secretary for determining the 

adequacy of the brakes, the pushrod stroke measurement, was not an accepted practice. 

(Respondent’s Post-Hearing Brief at 16). It noted that even Faulkner conceded that he had never 

seen anyone conduct this type of examination. (Id.). This issue will be discussed at length infra, 

regarding Citation No. 8365955. At this time it is sufficient to note that the technical way in 

which Respondent determined the adequacy of brakes is irrelevant. The brakes here were in fact 

inadequate. Any competent examination conducted by Respondent should have determined that 

this was the case. The fact that Respondent did not conduct a pushrod stroke measurement is not 

the negligent action; it is that it failed to adequately ensure safe brakes in some way, pushrod 

measurement or otherwise. 

Finally, Respondent once again noted that none of the miners working at the mine were 

its employees. (Respondent’s Post-Hearing Brief at 16). For the reasons discussed with respect 

to Citation No. 8365953, this argument is rejected. 

 20 This issue will be discussed at length in the discussion of Citation No. 8365955 

36 FMSHRC Page 3223
4. Penalty

In this matter, the Secretary proposed a penalty of $52,500.00 for Citation No. 8365954. 

Having affirmed the Secretary’s determinations in all respects, no deviation is necessary. In fact, 

the proposed penalty is appropriate under the Act. Once again, Respondent argued that the 

penalty should be lessened in light of the modifications it suggested as well as its citation history. 

(Respondent’s Post-Hearing Brief at 17-18). However, given the fact that no modifications were 

made and the extreme gravity of this violation, a substantial penalty is justified. Therefore, 

Respondent is hereby ORDERED to pay a civil penalty in the amount of $52,500.00 with 

respect to this violation. 

V. CONTENTIONS OF THE PARTIES REGARDING CITATION NO. 

8365955 

With respect to Citation No. 8365955, the Secretary asserts that Respondent violated 30 

C.F.R. §77.1606(a), that this violation resulted in a fatal injury to one miner, that the violation 

was S&S, and that it resulted from moderate negligence. (GX-12)(Secretary’s Post-Hearing 

Brief at 22-28). The Secretary also asserts that a penalty of $52,500.00 is appropriate. 

(Secretary’s Post-Hearing Brief at 28-30) 

Respondent asserts that it did not violate the cited standard. (Respondent’s Post-Hearing 

Brief at 11-13). It further avers that if a violation existed it was not S&S and that its actions 

would be better characterized as showing “low” or “no” negligence. (Id. at 11-15) Further, 

Respondent believes a reduction in the proposed penalty is appropriate. (Id. at 17-18). 

VI. FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING

CITATION NO. 8365955

1. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The

Evidence That 30 C.F.R. §77.1606(a) Was Violated.

On February 25, 2011, Inspector Faulkner issued a 104(a) Citation, No. 8365955, to 

Respondent. Section 8 of that Order, Condition or Practice, reads as follows: 

The results of a fatal accident investigation at the Rex Coal Company, Inc.’s, Rex 

Strip #1 revealed that an inadequate pre-operational examination was conducted 

for the 1988 Maroon Mack tandem lube truck, Model DM-690-SX, VIN 

#1M2B198C2JW002173, on Monday 11-22-2010, prior to the accident. During 

the investigation and interviews the following safety defects were revealed to 

exist on the truck, without recording or correcting the conditions: (1) Five of the 

six service brakes chamber pushrod strokes for the truck exceeded the maximum 

allowable pushrod stroke readjustment limit. (2) Three of the four parking brakes 

were ineffective or compromised. (3) The operator seat belt was improperly 

installed. (4) Both sections of the front windshield were cracked prior to the 

accident. An adequate pre-operational examination would have revealed these 

defects affecting safety. 

(GX-12). 

36 FMSHRC Page 3224
The cited standard, 30 C.F.R. §77.1606(a) (“Loading and haulage equipment; inspection 

and maintenance”), provides the following: 

Mobile loading and haulage equipment shall be inspected by a competent person 

before such equipment is placed in operation. Equipment defects affecting safety shall 

be recorded and reported to the mine operator. 

30 C.F.R. §77.1606(a). 

Evidence that equipment defects existed at the time of a pre-operational examination but 

were not corrected or recorded is sufficient to establish a violation of this standard. See e.g. 

Speed Mining, Inc., 2007 WL 2746692, *14 (Aug. 27, 2007)(ALJ Weisberger); and Alsea 

Quarries, 33 FMSHRC 1840, 1853-1854 (Aug. 2011)(ALJ Barbour) (the citation in this matter 

was issued under 30 CFR § 56.14100(d), which is substantially similar to 30 C.F.R. §77.1606(a) 

for the relevant issues here). 

In the instant matter, inspector Faulkner credibly testified that several equipment defects 

existed on the lube truck before the shift on which the accident occurred and that these defects 

were not recorded. Specifically, he noted that five of the six service brakes on the truck were 

inadequate. (Tr. 54-56). Because they used the same brake assembly as the service brakes, three 

of the four parking brakes were also inadequate. (Tr. 55). Faulkner knew that at least one of the 

brakes, the one on the front left steering axle, had been defective for a month or two. (Tr. 126). 

Faulkner also noted that the operator seat belt was improperly installed. (Tr. 57, 148-149). The 

belt was attached to the floor of the truck in two places. (Tr. 57-58, 148-149, GX-14, 15, & 16). 

This created a choking or squeezing hazard and also put an excessive burden on the seatbelt, as it 

had to hold the entire weight of the seat in an accident. (Tr. 60, 149-150). Finally, Faulkner 

learned from interviews that both sections of the front windshield were cracked and had been 

cracked for several shifts. (Tr. 61-62, 89, 187). Respondent’s pre-operational examination form 

included areas for the examiner to check the brakes, the seatbelt, and the windshield. (Tr. 55, 60-

61, 187-188). However, none of the conditions discovered by Faulkner were recorded in any of 

the pre-operational forms. (Tr. 53-54). As a result, I find that Respondent violated 30 C.F.R. 

§77.1606(a).

In its brief, Respondent asserted several arguments to support its claim that this citation 

was invalid. (Respondent’s Post-Hearing Brief at 11-13). However, those arguments are not 

supported by the evidence. 

First, Respondent noted that it had no reason to suspect that the brakes were inadequate. 

(Respondent’s Post-Hearing Brief at 12). Respondent pointed to Blanton’s testimony regarding 

the way in which pre-operational examinations of the brakes were conducted. (Id.). It explained 

that the method used by the Secretary, the pushrod stroke measurement, was not the accepted 

method to examine brakes. (Id.). In fact, Faulkner conceded that normal mining operations did 

not require such an examination, that he did not expect operators to use the pushrod stroke 

36 FMSHRC Page 3225
measurement, and that he would not issue a citation for failure to do so. (Id. at 12-13). Similarly 

Respondent noted that there was no way to determine whether there was “grease-like” material 

on a brake without removing the wheel. (Id. at 12). It asserts that the Secretary would not 

require a wheel to be removed during a pre-operational examination. (Id.). Finally, in this 

matter the Secretary did no tests to determine the degree to which the grease-like material 

affected the brakes. (Id.). 

Respondent misunderstands the purpose of the evidence regarding pushrod stroke 

adjustments and grease-like material presented in this proceeding. The Secretary presented 

extensive evidence regarding the pushrod stroke measurements (and the grease-like material) to 

quantify the degree to which the brakes were inadequate. To that end, Marshall testified that 

these brakes were likely at 20% capacity and at no more than 50% capacity. (Tr. 143, 146-147). 

This evidence is helpful in a legal proceeding under the Mine Act, where the Secretary bears the 

burden of proof. However, Respondent was not required to know with technical precision the 

mathematical degree to which the brakes on the lube truck were inadequate. It only needed to 

know that the brakes were, in fact, inadequate. Respondent could have determined that the 

brakes were defective with a pushrod stroke measurement, but, as noted by Inspector Faulkner, it 

was not required to do so. (Tr. 83-86). Respondent had discretion to determine a method of preoperational examination that worked for the mine. (Tr. 80-81, 91). Whatever method selected, 

however, the pre-operational examination needed to be sufficient to find safety defects. 

Here, as discussed supra, brakes on mobile equipment needed to be sufficient to stop or 

hold the truck under typical load on the highest grade the truck typically traveled. The method of 

pre-operational examination needed to be designed to ensure the brakes could meet those 

requirements. A pushrod stroke measurement might have been sufficient to achieve that goal, 

but certainly other methods were available as well. In short, the practical adequacy, not the 

technical method used to gauge that adequacy, is the primary issue in this matter. 

Respondent’s method, as described by Blanton, was logically and demonstrably 

insufficient for the task. Blanton explained that to check the brakes he would put the truck in 

gear, ease out on the clutch, and check to see if the brakes were holding. (Tr. 232-233). 

Logically, this method would be ineffective to determine whether the brakes could hold or stop 

the truck under typical load on a typical maximum grade. As Marshall credibly explained, high 

demand situations can place additional burdens on brakes. (Tr. 130-131, 133). Brakes that may 

be adequate in low demand situations may be inadequate for more strenuous activity. (Tr. 130-

131, 133). Checking whether the brakes were sufficient to hold a stationary truck on a flat 

surface would not be helpful in determining whether brakes would stop a moving truck on a 22% 

grade. Even if no accident had occurred, it would not be reasonable to believe the test described 

by Blanton was sufficient to conduct an adequate pre-operational examination. 

Unfortunately, the insufficiency of Respondent’s pre-operational examination method 

was clearly, and tragically, demonstrated on November 23, 2010. That day, the brakes were 

adequate in low demand situations, as the pre-operational examination indicated they would be. 

However, the brakes failed when faced with a high demand situation, traveling a 22% grade 

while in neutral. As a result, a fatal accident occurred. Respondent’s pre-operational 

examination procedure failed to test the brakes sufficiently to prevent this misfortune. 

36 FMSHRC Page 3226
Respondent should have used some other, effective method, whether a pushrod stroke 

measurement or some other test, to determine the adequacy of its brakes. Because it did not, this 

citation is valid. 

In addition to the brakes, Respondent also argued that a seatbelt was not required in this 

truck and that the improperly installed seatbelt did not violate any standard. (Respondent’s PostHearing Brief at 12). The cited standard, 30 C.F.R. §77.1606(a), does not require the operator to 

list and record violations, instead it requires the operator to list “equipment defects.” In this 

case, Respondent was not required by law to install a seatbelt. (Tr. 89). However, it was 

required under its own policy to have a seatbelt in the truck and that truck driver was required to 

wear it. (Tr. 201). That seatbelt was defective and presented a choking or squeezing hazard to 

the driver. (Tr. 57-58, 148-149). As a result, it should have been included on the pre-operational 

form. In fact, Respondent’s form actually included a place where defects to the seatbelt could be 

listed. (Tr. 60-61). Clearly, before the instant litigation, Respondent believed that that seatbelts 

were properly considered during a pre-operational examination. 

Finally, Respondent argued that the inspector learned of the cracks in the windshield 

from interviews. (Respondent’s Post-Hearing Brief at 12). Inspector Faulkner did not see the 

cracks himself and could not say if they affected the driver’s vision. (Id. 12-13). I find that 

Inspector Faulkner credibly testified that the windshield was cracked and that this was an 

equipment defect as countenanced by the standard. (Tr. 61, 63, 187-188). I find no reason to 

doubt the Inspector’s testimony or question the credibility of the miners he interviewed. Clearly 

Boggs believed the condition was hazardous, because he included it in his on-shift report. (Tr. 

62-64, 90). Further, the reason Inspector Faulkner was unable to inspect the windshield was 

because Respondent’s negligent action in failing to ensure adequate brakes resulted in further 

damage to the glass. Respondent cannot benefit from its own bad actions. 

None of Respondent’s arguments affect my determination that this citation was validly 

issued under 30 C.F.R. §77.1606(a). A preponderance of the evidence supports the issuance. 

2. The Violation Resulted in a Fatal Injury to One Miner And Was Significant And 

Substantial In Nature 

Inspector Faulkner marked the gravity of the cited danger in Citation No. 8365955 as 

having resulted in a “Fatal” Injury to one person. (GX-12). These determinations are supported 

by a preponderance of the evidence. 

 The event against which the instant standard, 30 C.F.R. §77.1606(a) is directed is the use 

of defective equipment leading to an accident. (Tr. 50). Here, the Secretary presented credible 

evidence that the lube truck had several defects, including inadequate brakes, an improperly 

installed seatbelt, and a cracked windshield. (Tr. 54-57, 61). However, none of these conditions 

were recorded and the truck was actually placed into service. (Tr. 53-54). The hazard was 

realized and the defective equipment was involved in an accident that resulted in fatal injuries to 

one miner, Rhett Mosley. (Tr. 64-65). Therefore, the evidence supports the Secretary’s 

determinations. 

36 FMSHRC Page 3227
With respect to S&S, the first element, the underlying violation of a mandatory safety 

standard, it has already been established that Respondent violated 30 C.F.R. §77.1606(a). 

With respect to the second element of Mathies, a discrete safety hazard – that is a 

measure of danger to safety – contributed to by the violation – was also met. The cited 

condition, failure to remove defective equipment from service, contributed to a discrete safety 

hazard. The truck and its brakes were not maintained or removed from service when defects 

were present and, as a result, the brakes were unable to stop or even control the truck as it 

descended the hill. (Tr. 46-47, 79, 139, 146, 148). This inability to control the truck 

undoubtedly contributed to a discrete safety hazard, in this matter an accident involving mobile 

equipment. 

The third element of the Mathies test – a reasonable likelihood that the hazard contributed 

to will result in an injury – was also met. In this matter, the hazard contributed to was realized 

and an injury occurred as a result. Therefore, the third prong of Mathies is met. 

The fourth element -that the injury be of a reasonably serious nature - was also met. 

Unfortunately, the actual injury sustained was a fatal injury to Rhett Mosley. (Tr. 63-64). As a 

result, the fourth prong of Mathies is met. 

As a result of these factors, I find that the Secretary proved the violation was S&S by a 

preponderance of the evidence. 

Respondent argues that this citation should not be S&S because the violation cited the 

examination performed on November 21, the day before the examination, and Blanton testified 

that there were no problems with the brakes that day. (Respondent’s Post-Hearing Brief at 16). 

As noted supra, Marshall noted that at least one of the brakes had been defective for a month or 

two. (Tr. 126). Marshall was unable to determine the length of time the other brakes were 

defective, but they were also defective to some degree. Further, the windshield had been 

damaged for several shifts. (Tr. 61-62, 89, 187). Finally, there was no evidence or reason to 

believe the seatbelt had recently been installed. Therefore, some conditions (at least one brake, 

the windshield, and the seatbelt) should have been noted on November 21, 2010.21 

Respondent also argued “[u]nless the Secretary can establish a brake problem which the 

pre-op examination would have detected, the exam cannot be considered S&S.” (Respondent’s 

Post-Hearing Brief at 15). Respondent, unsurprisingly, cited no authority for this bizarre 

 21 Even if I were to discount the November 21 pre-operational examination, Respondent 

would still be liable for the November 22 exam. The Secretary cited the November 21 

examination because the November 22 examination for Mosley’s shift was either not conducted 

or, because Respondent’s method of having pre-shift examination records submitted after the 

shift, was destroyed in the accident. (Tr. 52-54, 80). Respondent’s actions in setting up this 

delayed reporting system and also in allowing the truck to be operated in ill-repair resulted in the 

loss of the record. If I had been asked to draw an adverse inference against Respondent because 

of this lost record (either that the record never existed or that it was inadequate) I would have 

done so. 

36 FMSHRC Page 3228
assertion. The gravity and dangers of mining are not determined by the method of Respondent’s 

pre-operational examination, the pre-operational examination should be conducted in light of the 

gravity and dangers of mining. A pre-shift examination should be conducted in such a way as to 

consider, and limit, the real dangers faced by miners. An operator cannot conduct its 

examinations in a way that ignores dangers and then claim that, as a result of wilful ignorance, 

that the dangers are somehow lessened.22 This argument in no way changes S&S determination. 

Finally, Respondent argued “[e]ven an exam performed exactly as Mr. Faulkner would 

have expected would not have detected any brake problems.” (Respondent’s Post-Hearing Brief 

at 15). Faulkner’s expectations, even if they were as Respondent described, would be 

immaterial. The issue was whether a defect existed and whether it was recorded. Here, the 

brakes, seatbelt, and windshield were defective, and nothing was done about the conditions. 

Further, Marshall believed that the conditions he observed with the brakes could have been 

found prior to the accident. (Tr. 141). 

3. Respondent’s Conduct Displayed “Moderate” Negligence.

In the citation at issue, Inspector Faulkner found that the operator’s conduct was 

moderately negligent in character. (GX-12). The substantial evidence supports this designation. 

With respect to knowledge, the factual situation presented here is substantially similar to 

that in Citation Nos. 8365953 and 8365954. Specifically, a supervisor within in the definition 

provided in 30 U.S.C. 802(e) and Martin Marietta Aggregates, supra, should have known that 

the brakes were inadequate. Respondent, through its foremen, was required under relevant 

standards as well as company policy, to ensure the adequate pre-operational examinations. 

Specifically, the foremen were required to collect the pre-operational examination records, 

review them, and ensure that all proper repairs were conducted. (Tr. 53, 92, 182-183, 195-196, 

233). The foremen were also required to remove equipment from service when it could not be 

repaired. (Tr. 92, 182-183, 195-196). Equipment operators testified that they would bring any 

problems with the equipment to the attention of the foremen. (Tr. 182, 133). Despite this 

responsibility, none of the foremen determined that the pre-shift examinations conducted here 

were inadequate. This was true even though one of those foremen, Boggs, saw the cracked 

windshield during an on-shift examination and could see on the pre-shift examination form that 

the condition was not recorded. (Tr. 62-64, 90). The foremen’s conduct in failing to ensure 

adequate pre-shift examinations is imputed to Respondent. Whayne Supply Co., supra; 

Rochester & Pittsburgh Coal Co., supra; and Southern Ohio Coal Co., supra. 

Even higher levels of management beyond the foremen were directly culpable for the 

negligence shown here. Specifically, Respondent had appointed Chasteen as foreman. While 

Chasteen appeared to be an honest and reliable individual at trial, it should be noted that he 

testified that while he was generally familiar with pre-operational examinations, he did not know 

 22 Respondent was quick to note at other places in its brief that an operator has discretion 

to determine the method of its pre-operational examination. Suppose, for example, an operator 

decided that its examiners should smell, and only smell, the brakes to determine they if they were 

adequate. Would Respondent argue that a subsequent accident caused by inadequate brakes 

could not be S&S because the examiner could not smell the defect? 

36 FMSHRC Page 3229
how Respondent’s equipment operators tested the brakes. (Tr. 184-185). Despite this fact, 

Chasteen supervised three rock truck drivers and one lube truck driver. (Tr. 187). How could 

Chasteen ensure the miners working at his direction were performing adequate pre-shift 

examinations if he had no idea what an adequate pre-shift would entail? To a certain extent, the 

negligence of the foremen was incidental to the earlier negligence shown by higher levels of 

management in making policy and conducting training. 

Having found the requisite knowledge, the next issue is whether there were any 

mitigating circumstances. The evidence showed that Respondent regularly conducted preoperational examinations. While these examinations were inadequate for testing the brakes in 

high demand situations, Respondent did determine that the brakes would work in low demand 

situations. Having found that there were some mitigating circumstances, I affirm the Secretary’s 

designation of “moderate” negligence. 

Respondent argued that it was entirely without negligence or, at most, there were 

substantial mitigating circumstances. (Respondent’s Post-Hearing Brief at 15-17). Once again, 

Respondent noted that none of the miners working at the mine were its employees. (Id.). For the 

reasons discussed with respect to Citation Nos. 8365953 and 8365954, this argument is rejected. 

Respondent also argued that a prudent operator would not have conducted a pushrod 

stroke examination and that Respondent had no reason to know the brakes required maintenance. 

(Respondent’s Post-Hearing Brief at 16-17). Respondent was not negligent for failure to 

conduct a push-rod stroke measurement. It was negligent for failure to determine that the brakes 

were defective. The brakes were at best at 50% capacity. (Tr. 147). Therefore, Respondent had 

reason to know they were defective; it simply needed to develop an examination method that 

would determine the deficiency. This is not a mitigating factor. 

4. Penalty

In this matter, the Secretary proposed a penalty of $52,500.00 for Citation No. 8365955. 

Having affirmed the Secretary’s determinations in all respects, no deviation is necessary. In fact, 

the proposed penalty is appropriate under the Act. Once again, Respondent argued that the 

penalty should be lessened in light of the modifications it suggested as well as its citation history. 

(Respondent’s Post-Hearing Brief at 17-18). However, given the fact that no modifications were 

made and the extreme gravity of this violation, a substantial penalty is justified. Therefore, 

Respondent is hereby ORDERED to pay a civil penalty in the amount of $52,500.00 with 

respect to this violation. 

 

36 FMSHRC Page 3230
ORDER

It is hereby ORDERED that Citation Nos. 8365953, 8365954, and 8365955 are 

AFFIRMED. 

Respondent is ORDERED to pay civil penalties in the total amount of $157,500.00 

within 30 days of the date of this decision.23

/s/ Kenneth R. Andrews

Kenneth R. Andrews 

 Administrative Law Judge 

Distribution: 

Joseph B. Luckett, Esq., U.S Department of Labor, Office of the Solicitor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

John M. Williams, Esq., Rajkovich, Williams, Kilpatrick &True, PLLC, 3151 Beaumont Centre 

Circle, Suite 375, Lexington, KY 40513 

/tjb 

 23 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 

63179-0390 

36 FMSHRC Page 3231
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

December 4, 2014 

DECISION

Appearances: Anthony M. Berry, Esq., U.S. Department of Labor, Office of the Solicitor, 

Nashville, Tennessee, for Petitioner; 

Tyler H. Fields, Esq., Excel Mining, LLC, Lexington, Kentucky, for Respondent. 

Before: Judge Paez 

This case is before me upon the Petition for the Assessment of Civil Penalty filed by the 

Secretary of Labor (“Secretary”) pursuant to section 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 815(d). In dispute are two section 104(a) citations issued to 

Excel Mining, LLC (“Excel” or “Respondent”). To prevail, the Secretary must prove his charges 

“by a preponderance of the credible evidence.” In re: Contests of Respirable Dust Sample 

Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas 

Co., 11 FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom., Sec’y of Labor v. Keystone Coal 

Mining Corp., 151 F.3d 1096, 1106–07 (D.C. Cir. 1998). This burden of proof requires the 

Secretary to demonstrate that “the existence of a fact is more probable than its nonexistence.” 

RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000) (citations and internal 

quotations omitted), aff’d, 272 F.3d 590 (D.C. Cir. 2001). 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

EXCEL MINING, LLC, 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. KENT 2011-1618 

A.C. No. 15-18839-265121 

Mine: Van Lear Mine 

36 FMSHRC Page 3232
I. STATEMENT OF THE CASE

Both of the alleged violations in this docket charge Excel with a violation of its 

ventilation plan under 30 C.F.R. § 75.370(a)(1).1

 The MSHA inspectors designated each 

violation as significant and substantial (“S&S”)2

 and characterized Excel’s level of negligence as 

moderate. The Secretary proposed specially-assessed penalties under his 30 C.F.R. § 100.5 

regulations based on Respondent’s history of violations at this mine. Specifically, the Secretary 

proposed penalties of $13,600.00 and $11,500.00, respectively, for Citation Nos. 8258130 and 

8252975. 

Chief Administrative Law Judge Robert J. Lesnick assigned Docket No. KENT 2011-

1618 to me, and I held a hearing in Pikeville, Kentucky.3

 The Secretary presented testimony 

from Inspectors Jamie Hamilton and Billy Stiltner. Excel presented testimony from Mine 

Engineer David Arrington. The parties each filed closing briefs and reply briefs. 

II. ISSUES

The parties have stipulated to the Commission’s jurisdiction in this case. (Ex. J–1 at 

1–2.) The Secretary argues that the allegations underlying both citations are valid and that his 

proposed penalties are appropriate.4

 (Sec’y Br. at 6, 9–10, 14, 16–19.) Although Excel admits 

1

 Section 75.370(a)(1) provides: 

The operator shall develop and follow a ventilation plan approved 

by the district manager. The plan shall be designed to control 

methane and respirable dust and shall be suitable to the conditions 

and mining system at the mine. The ventilation plan shall consist 

of two parts, the plan content as prescribed in [section] 75.371 and 

the ventilation map with information as prescribed in [section] 

75.372. Only that portion of the map which contains information 

required under [section] 75.371 will be subject to approval by the 

district manager. 

2

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

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

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

3

 In this decision, the hearing transcript, the Secretary’s exhibits, and Excel’s exhibits are 

abbreviated as “Tr.,” “Ex. G–#,” and “Ex. R–#,” respectively. The parties also admitted a list of 

stipulations in a joint exhibit, which is abbreviated as “Ex. J–1.” 

4

 Although MSHA Inspector Hamilton characterized Excel’s negligence as “moderate” 

for Citation No. 8258130 (Ex. G–1), the Secretary in his posthearing brief asks that I modify the 

level of negligence to “high.” (Sec’y Br. at 10, 19.) The Federal Rules of Civil Procedure allow 

the amendment of pleadings to conform to the evidence if an issue is tried by the parties’ express 

or implied consent. See Fed. R. Civ. P. 15(b)(2). Given the facts of this case and my conclusions 

of law, see discussion infra Part V.A.2, I need not reach this issue. 

36 FMSHRC Page 3233
that the cited conditions constituted violations, Respondent disputes the Secretary’s allegations 

regarding gravity and negligence. (Resp’t Br. at 6–7; Resp’t Reply at 7.) Specifically, 

Respondent argues that the Secretary has failed to demonstrate either violation was S&S and 

claims its negligence in each case was low. (Resp’t Br. at 6–7.) Further, Excel suggests that I 

modify Citation No. 8252975 to reduce the number of miners affected from five to two. (Id. 

at 7.) Finally, Excel contends that the penalties should be lowered in this case. (Id.) 

 Accordingly, the following issues are before me: (1) whether the record supports the 

Secretary’s assertions regarding the gravity of the alleged violations, including whether each is 

S&S and whether Citation No. 8252975 affected five miners; (2) whether the record supports the 

Secretary’s assertions regarding Excel’s negligence in committing the alleged violations; and 

(3) whether the Secretary’s proposed penalties are appropriate. 

 For the reasons set forth below, Citation Nos. 8258130 and 8252975 are AFFIRMED as 

to the Secretary’s gravity determinations and MODIFIED to reduce the levels of negligence 

from “moderate” to “low.” 

III. FINDINGS OF FACT

A. Basic Mining Phases at Van Lear Mine

 

The Van Lear Mine is an underground coal mine located in Martin County, Kentucky. 

(Ex. G–4 at 1.) Room-and-pillar mines like the Van Lear Mine produce coal in two phases. (See

Tr. 21:13–15, 32:21–23, 50:14–51:4, 55:20–57:13.) In the first phase—known as advance 

mining—an operator uses a continuous mining machine to bore deeper into different sections of 

the mine. (See Tr. 55:20–57:13, 153:12–15, 165:3–10.) The continuous mining machine cuts 

through the coal seam in long corridor-like entries and perpendicular crosscuts. (See Ex. G–3; 

Ex. G–3A; Ex. G–8; Ex. G–8A; Ex. R–1; Tr. 153:25–154:4.) However, the resulting square or 

rectangular “pillars” of coal within the seam are not simultaneously mined; instead, those pillars 

remain in place to provide support for the overlying rock and dirt as the operator advances 

deeper into the mine. (Tr. 165:3–10.) Thus, when viewed from above, working sections at Van 

Lear Mine—also known as panels—in the advance mining phase resemble checkerboards, with 

entries and crosscuts surrounding pillars of coal. (Ex. G–3; Ex. G–3A; Ex. G–8; Ex. G–8A; Ex. 

R–1.) 

When the mine operator reaches the end of a coal panel, the process enters the second 

phase, which is known as retreat mining. (Tr. 151:19–152:5, 165:11–15; Ex. G–3; Ex. G–3A; 

Ex. G–8; Ex. G–8A; Ex. R–1.) In this phase, the operator removes portions of certain coal pillars 

on the panel sequentially as it “retreats” towards the entrance to the panel. (Tr. 50:14–51:4, 

112:14–113:3, 151:19–152:5, 165:11–18.) As the operator retreats, the mine roof may collapse 

because the weight of the rocks and dirt above is no longer being supported—creating a refuse 

area called “gob.” (Tr. 146:19–24, 148:1–10.) Because methane and other dangerous gases 

collect in the gob, mine operators must continue to ventilate it even though no additional mining 

activity will occur in these areas. (Tr. 48:9–49:14, 50:14–51:7, 55:20–56:10, 57:5–7, 113:12–

114:5, 146:25–147:10.) Proper ventilation of gob areas includes the retention of a series of 

pillars—also known as bleeder blocks—around the outside of the gob, which provides a pathway 

36 FMSHRC Page 3234
to ventilate fresh air into and through the gob, thus forcing those dangerous gases out of the 

mine. (See Tr. 48:9–49:14, 56:4–10, 57:5–7, 113:23–114:5, 121:16–20, 178:8–20; Ex. G–4 at 

31.) This air pressure on the gob also helps ensure that those gases do not seep back into the 

active mining section.5

 (Tr. 113:12–114:5, 114:24–115:8, 121:7–20, 126:4–13, 132:17–21, 

133:17–134:16.) Accordingly, panels at the Van Lear Mine in the retreat mining phase continue 

to resemble checkerboards around their borders, but they contain large gob areas in the center of 

the ring created by the bleeder blocks. (Ex. G–3; Ex. G–3A; Ex. G–8; Ex. G–8A; Ex. R–1.) 

B. Ventilation Controls at the Van Lear Mine

Methane gas and respirable dust are two dangerous by-products of the coal mining 

process. (See Tr. 22:2–20, 38:24–39:10.) In certain concentrations, methane is an explosive gas. 

(Tr. 60:10–14.) The Van Lear Mine is a gassy mine, which liberates more than 500,000 cubic 

feet of methane within a twenty-four hour period. (Tr. 22:2–20.) Based on the volume of 

methane the Van Lear Mine liberates, MSHA placed the mine on a ten-day spot exam schedule 

requiring MSHA inspectors to take bottle samples every ten days to test for methane 

accumulations. (Tr. 22:7–12, 131:18–21, 164:6–14.) In addition, exposure to silica in respirable 

dust form contributes to serious lung diseases. (Tr. 39:24–40:22, 45:21–46:11, 67:14–68:10.) 

In accordance with 30 C.F.R. § 75.370(a)(1), Excel also submitted a ventilation plan to 

MSHA on April 27, 2010, and MSHA approved the plan on May 10, 2010 (“May 10 Plan”). (Ex. 

G–4; Ex. G–4A.) To control methane and dust produced in the mining process, the plan required 

Excel to provide fresh air with a velocity of at least 4,800 cubic feet per minute (c.f.m.) at any 

face where coal is being mined. (Ex. G–4 at 9, 11, 31; Ex. G–4A at 9, 11, 31; Tr. 36:4–14, 

36:23–37:4, 125:5–15.) In addition, the May 10 Plan required Respondent to provide at least 

13,000 c.f.m. of air on the intake side of the pillar line. (Ex. G–4 at 9, 11, 31; Ex. G–4A at 9, 11, 

31; Tr. 108:18–109:22.) During retreat mining, Excel was required to ensure at least 7,000 c.f.m. 

reached the deepest part of the panel, after the air passed through the gob and the bleeder blocks. 

(Ex. G–8; Ex. G–8A; Ex. R–1; Tr. 127:13–128:13, 174:4–7, 174:23–175:3.) 

C. Inspections – January 24, 2011

Inspectors Hamilton and Stiltner visited the Van Lear Mine to conduct a complete 

inspection of the mine on January 24, 2011. (Tr. 22:21–23:8, 90:20–21, 91:23–24, 92:21–93:3; 

Ex. G–2 at 1; Ex. G–7 at 1.) At the time, Excel had begun the retreat mining phase and was 

removing pillars from the Van Lear Mine’s Panel 6 using two separate continuous mining 

machines.6

 (See Tr. 100:2–13, 102:5–105:9.) On January 24, day shift miners began cutting coal 

in Panel 6 at approximately 7:30 a.m. (Tr. 32:11–13.) 

5

 Once a week, Excel was required to monitor the amount of air that reached the back end 

of the panel beyond the gob and the bleeder blocks. (Tr. 128:14–21.) 

6

 These machines and their respective crews were known as the 007 MMU and 008 

MMU. (Tr. 31:16–18, 100:8–9, 101:23–24.) “MMU” stands for mechanized mining unit. (See

Tr. 31:18.) Each unit includes a continuous mining machine operator, two shuttle car drives, and 

two miners setting timbers for roof control purposes. (Tr. 112:2–7.) 

36 FMSHRC Page 3235
The roof of Panel 6 was made of sandstone, which contains quartz.7

 (Tr. 32:24–33:4; Ex. 

G–5.) In addition, the continuous miner frequently created sparks when its carbide tip bits struck 

the mine roof. (Tr. 116:17–20.) These sparks provided potential ignition sources. (Tr. 116:17–

20.) 

Panel 6 included six entries. When looking towards the working face, the No. 1 Entry 

was located on the far left and the No. 6 Entry was located on the far right. (Ex. G–3A; Ex. 

G–8A; Tr. 27:8–31:16, 37:6–8, 100:8–103:23.) Because Excel employed two separate 

continuous miners on the Panel, Respondent provided separate air courses of fresh air for each 

mining unit. (See Tr. 102:5–12, 104:11–15, 120:12–121:20.) Thus, the intake air traveled up the 

No. 3 Entry, then split into separate air courses when it reached the last open crosscut. 

(Tr. 101:17–24, 102:10–12; Ex. G–3A; Ex. G–8A.)

Hamilton and Stiltner arrived at the mine at approximately 8:00 a.m., met with Excel 

personnel at the surface, and examined preshift and on-shift reports. (Ex. G–2 at 1; Ex. G–7 at 1, 

Tr. 25:8–11, 54:12–21, 94:24–95:2, 129:6–12.) Along with Excel’s Curtis Webb and Mike 

Hurley, the inspectors then traveled to Panel 6 and completed an imminent danger run of the 

retreat mining section. (Ex. G–2 at 1–4; Ex. G–7 at 1–3; Tr. 25:15–24, 93:12–20, 130:9–12.) At 

this point, Hamilton inspected the right side of the panel while Stiltner inspected the left. (Ex. G–

3A; Ex. G–8A; Tr. 100:12–103:23, 104:11–23, 109:17–25.) 

1. Hamilton’s Inspection and Citation No. 8258130

As Inspector Hamilton approached the No. 6 entry, he noticed the 008 MMU cutting into 

the pillar bounded by the entry and the last open crosscut. (Tr. 27:25–31:18, 32:14–20.) The 

machine operator had just begun his cut a few minutes earlier, cutting the bottom of the pillar 

near the floor. (Tr. 39:11–15, 57:14–59:7, 82:2–12.) As the mining machine operator made his 

cut, Hamilton also observed a cloud of dust surrounding the operator. (Tr. 38:16–23, 41:5–10, 

67:9–13, 73:23–74:2; Ex. G–2 at 6.) Although Hamilton did not collect bottle samples of this 

dust, he witnessed the machine operator standing in the dust and inhaling without any respirator 

or dust mask. (Tr. 40:19–41:2, 41:11–15, 62:11–18, 74:3–5.) He also learned that neither the 

section foreman nor the machine operator had taken an air reading prior to beginning the cut. (Tr. 

46:19–47:8, 50:2–7, 53:12–23; Ex. G–2 at 8.) Hamilton did not detect any methane present in the 

working section. (Tr. 60:18–21, 78:15–18, 82:24–83:1.) 

At that point, Hamilton measured the air flow at the continuous mining machine using an 

anemometer. (Tr. 37:10–19.) He recorded an air velocity of 3,456 c.f.m., which was below the 

4,800 c.f.m. required under the May 10 Plan. (Tr. 37:20–25, 49:15–23; see Ex. G–4 at 9, 11, 31; 

Ex. G–4A at 9, 11, 31.) 

7

 The Secretary’s regulations lower the concentration of respirable dust that may be found 

in the mine’s atmosphere when the respirable dust contains more than five percent quartz. See 30 

C.F.R. §§ 70.100–.101. Although Excel was not subject to this heightened quartz standard at the 

time of the inspection (Tr. 42:6–43:5; Ex. G–5), it is uncontroverted that Respondent’s mine roof 

contained quartz. 

36 FMSHRC Page 3236
Based on his inspection, Hamilton issued Citation No. 8258130 at 10:30 a.m., providing: 

The compan[y’s] Ventilation plan is not being followed for the 008 

MMU. While cutting in the [No.] 6 [E]ntry[,] 3456 cfm was 

measured going over [the] miner when checked with calibrated 

anemometer while cutting in [the] 1st sump of pillar block. The 

compan[y’s] plan requires 4800 cfm as stated on page 31 of the 

ventilation plan. The miner had visible float dust suspended in the 

air around [the] miner and miner man. The continuous miner was 

cutting in sandstone roof. This condition exposes miners to the 

dangers associated with lung disease. This mine also on a 10 day 

spot liberating 500,000 cubic ft of methane in a 24 hour period. 

This condition exposes miners to the dangers associated with an 

ignition. Standard 75.370(a)(1) was cited 50 times in two years at 

[this mine] (50 to the operator, 0 to a contractor). 

(Ex. G–1 at 1–2.) Hamilton marked the citation as S&S and indicated the condition affected one 

person. (Id. at 1.) Hamilton also characterized Excel’s negligence as moderate. (Id.) To abate the 

violative condition, Respondent spent approximately 10 minutes tightening ventilation curtains 

on Panel 6. (Id.; Tr. 47:9–18, 51:18–53:7; Ex. G–2 at 7.) At the hearing, Hamilton admitted that 

he had no basis for determining the length of time this cited condition existed. (Tr. 63:24–64:14, 

74:13–19.) 

2. Stiltner’s Inspection and Citation No. 8252975

When Inspector Stiltner began to inspect the left side of the working section, he noted 

that the 007 MMU was completing its pillar removal work in the No. 3 Entry and moving into 

the No. 2 Entry. (Tr. 105:11–16, 112:14–113:3, 114:11–23, 147:11–23; Ex. G–7 at 4–5.) At the 

time, two miners were setting timbers in the No. 2 Entry and three miners had moved into the 

No. 3 Entry. (Tr. 112:14–113:3; Ex. G–7 at 4.) Stiltner took an air reading while positioned in 

the last open crosscut between the No. 2 and No. 3 entries. (Tr. 122:16–21; Ex. G–8A.) He 

recorded an air velocity of 10,703 c.f.m., which is below the 13,000 c.f.m. required under the 

May 10 Plan. (Tr. 111:11–18, 120:25–121:2; Ex. G–7 at 5, 9.) Stiltner did not detect any 

methane on the section. (Tr. 115:9–14, 130:9–131:14; Ex. G–7 at 4, 9.) 

In light of his observations, Stiltner issued Citation No. 8252975 at 11:15 a.m., providing: 

The approved ventilation plan is not being followed on the 007-0 

[sic] MMU. When measured with a calibrated anemometer only 

10,703 cfm of air is present at the intake side of the pillar line. 

Page 9 of the approved plan, dated [May 10, 2010], states that a 

minimum of 13,000 cfm of air will be maintained at the intake side 

of the pillar line. This mine is on a 103(i) 10 day spot with a 

history of liberating in excess of 500,000 cubic feet of methane in 

a 24 hour period. This inadequate ventilation exposes the miners 

who work on this section, three shifts per day five to six days per 

36 FMSHRC Page 3237
week, to the hazards associated with the buildup of methane. 

[Section] 75.370(a)(1) was cited 50 times in two years at [the Van 

Lear Mine] (50 to the operator, 0 to a contractor). 

(Ex. G–6.) Stiltner designated the citation as S&S and indicated that five miners were likely to be 

affected. (Id.) He also characterized Respondent’s negligence as “moderate” in this case. (Id.) 

Stiltner suggested that the foreman might have been able to feel the difference between 13,000 

c.f.m. and 10,703 c.f.m. (Tr. 119:9–16, 143:7–144:14.) However, Stiltner did not know how long 

this condition existed. (Tr. 117:21–118:3.) Excel again tightened ventilation curtains and the 

citation was abated thirty minutes after being issued. (Tr. 118:2–4, 119:17–120:6, 134:17–

137:21, 144:22–146:18; Ex. G–6.) 

IV. PRINCIPLES OF LAW

A. Significant and Substantial

A violation is S&S “if, based on the particular facts surrounding that violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

To establish an S&S violation, the Secretary must prove: “(1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazard—that is, a measure of danger to safety—

contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will 

result in an injury; and (4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted);

see also Buck Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135–36 (7th 

Cir. 1995) (affirming ALJ’s application of the Mathies criteria); Austin Power, Inc. v. Sec’y of 

Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving the Mathies criteria). 

The Commission has also provided guidance to Administrative Law Judges in applying 

the Mathies test. The Commission indicated that “an inspector’s judgment is an important 

element” in an S&S determination. Mathies, 6 FMSHRC at 5 (citing Nat’l Gypsum, 3 FMSHRC 

at 825–26); see also Buck Creek Coal, 52 F.3d at 135 (stating that ALJ did not abuse discretion 

in crediting opinion of experienced inspector). The Commission has also observed that “the 

reference to ‘hazard’ in the second element is simply a recognition that the violation must be 

more than a mere technical violation—i.e., that the violation present a measure of danger.” 

U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984) (emphasis added) (citing Nat’l 

Gypsum, 3 FMSHRC at 827). Moreover, the Commission clarified “the correct inquiry under the 

third element of Mathies is whether the hazard identified under element two is reasonably likely 

to cause injury.” Black Beauty Coal Co., 34 FMSHRC 1733, 1742 n.13 (Aug. 2012). Finally, the 

Commission has specified that evaluation of the reasonable likelihood of injury should be made 

assuming continued mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 

1985) (quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)). 

36 FMSHRC Page 3238
B. Negligence

Although the Secretary’s part 100 regulations are not binding on the Commission, the 

Secretary’s definitions of negligence in those provisions are illustrative. According to the 

Secretary, negligence is “conduct, either by commission or omission, which falls below a 

standard of care established under the Mine Act to protect miners against the risks of harm.” 

30 C.F.R. § 100.3(d). These standards indicate that high negligence is found where “[t]he 

operator knew or should have known of the violative condition or practice, and there are no 

mitigating circumstances.” Id. at Table X. Moreover, the standards prescribe moderate 

negligence where “[t]he operator knew or should have known of the violative condition or 

practice, but there are mitigating circumstances.” Id. Finally, low negligence is found where 

“[t]he operator knew or should have known of the violative condition or practice, but there are 

considerable mitigating circumstances.” Id.

C. Penalties

Although the Secretary proposes penalties, the Commission assesses penalties for 

violations of the Mine Act de novo. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 

2000). When assessing a civil penalty, section 110(i) of the Mine Act requires that I consider six 

criteria, including: the operator’s history of previous violations, the appropriateness of the 

penalty relative to the size of the operator’s business, the operator’s negligence, the penalty’s 

effect on the operator’s ability to continue business, the gravity of the violation, and the 

demonstrated good faith of the operator in attempting to achieve rapid compliance. 30 U.S.C. 

§ 820(i). The criteria are not required to be given equal weight. Jim Walter Res., Inc.,

36 FMSHRC 1972, 1979 (Aug. 2014). 

V. FURTHER FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW

A. Citation No. 8258130

As explained above, Inspector Hamilton issued Citation No. 8258130 as the result of 

conditions he identified during his January 24, 2011, inspection of the Van Lear Mine. See

discussion supra Part III.C.1. Although Excel admitted that the cited conditions were a violation 

of 30 C.F.R. § 75.370(a)(1), Respondent contends that the Secretary has not satisfied his burden 

of proving his allegations regarding gravity and negligence. See discussion supra Part II. 

1. Gravity and S&S

The Secretary contends that he has satisfied all four elements of the Mathies’ test for 

S&S.8

 (Sec’y Br. at 8–9.) Respondent does not dispute the fact of violation or seriousness of the 

8

 Although Inspector Hamilton included methane ignition as a hazard in the “Condition 

or Practice” narrative of Citation No. 8258130 (Ex. G–1), his testimony made only passing 

reference to methane ignition. (Tr. 22:13–20, 82:17–83:1.) Instead, he focused on dust exposure 

as the hazard with which he was most concerned. (See Tr. 40:14–16, 78:23–79:2.) Similarly, the 

(continued...) 

36 FMSHRC Page 3239
injury that is likely to result from prolonged exposure to respirable dust. (Resp’t Br. at 8.) 

Accordingly, Excel admits that Mathies’ first and fourth elements have been satisfied. (Id.) 

However, Respondent claims that the Secretary has not met his burden of proving that the 

violation contributed to a discrete safety hazard. (Id. at 9–11.) In the alternative, Excel also 

argues that the Secretary has not demonstrated that the discrete safety hazard is reasonably likely 

to result in an injury. (Id. at 11–15.) Given the evidence before me, I determine that the Secretary 

has satisfied his burden of proof on both the second and third Mathies’ elements. 

First, the record in this case demonstrates that Excel’s violation of its ventilation plan 

contributed to a discrete safety hazard. Inspector Hamilton specifically identified dust exposure 

as the hazard to which Excel’s violation would contribute. (Tr. 40:14–16, 78:23–79:2) When 

Hamilton arrived on Panel 6, he observed the operator of the continuous mining machine 

surrounded by visible dust. Further, the machine operator was not wearing a respirator or dust 

mask, which meant that he was breathing in the dust surrounding him. Although Hamilton did 

not take bottle samples of the dust he observed, he credibly testified that the sandstone roof 

would provide a source of quartz, which is a source of hazardous respirable dust.9

 As the 

operator cut into the top of the coal pillar, Excel’s violative and insufficient air flow would allow 

dust to continue to collect around the miner. Indeed, Hamilton credibly testified that the low air 

velocity increased the amount of dust flowing over the machine operator. (Tr. 77:14–19.) 

Hamilton is also an experienced inspector and miner. (Tr. 16:17–18:15.) As mine 

foreman and section boss, Hamilton had been responsible for ventilation and the safety of miners 

underground. (Tr. 17:7–18:1.) Thus, his opinion is entitled to significant weight. See Harlan 

Cumberland Coal Co., 20 FMSHRC 1275, 1278–79 (Dec. 1998) (relying on the opinion of an 

experienced inspector to conclude that substantial evidence supported an ALJ’s S&S 

determination). Accordingly, I determine that Excel’s violation of its ventilation plan contributed 

to the hazard of respirable dust inhalation. 

Second, the record before me also demonstrates that this dust hazard was reasonably 

likely to result in an injury. Hamilton credibly testified that brief exposure to respirable dust 

8

 (...continued) 

 Secretary in his posthearing brief claims this violation “contributes to the discrete safety hazard 

of allowing the accumulation of respirable dust and harmful gases, such as methane” but focuses 

solely on dust exposure in discussing the reasonable likelihood of reasonably serious injury. 

(Sec’y Br. at 8–9.) Accordingly, my analysis will focus on the dust exposure hazard. 

9

 In Excel’s posthearing brief, the operator notes that the dust Inspector Hamilton 

observed “came from cutting in the mine floor, not the mine roof where quartz can be found.” 

(Resp’t Br. at 11.) Thus, Respondent claims that “the continuous miner was not cutting an area 

that generally exposes quartz, and any testimony that they would eventually cut into quartz is 

purely speculative.” (Id.) Nevertheless, it is uncontroverted that the sandstone roof at the Van 

Lear Mine contained quartz, and Hamilton credibly testified that Respondent would eventually 

cut into the roof as it continued to mine the pillars in Panel 6. Indeed, Excel did not dispute that it 

intended to mine the top portion of the coal pillar that abutted the sandstone roof. Thus, Excel 

would have cut into the mine’s sandstone roof in the course of continued mining operations. 

36 FMSHRC Page 3240
contributes to black lung disease and silicosis. He also indicated that the low air velocity and 

presence of dust surrounding the machine operator made this hazard reasonably likely to result in 

injury. In contrast, Excel argues that “[t]he nature of the retreat mining process makes it 

impossible to sustain this exposure to the degree that it is reasonably likely illness will occur.”10

(Resp’t Br. at 12.) Yet in the context of respirable dust hazards, the Commission has not cast the 

reasonable likelihood of injury analysis in durational terms. Consolidation Coal Co., 8 FMSHRC 

890, 894–99 (June 1986) [hereinafter “Consol I”], aff’d, 824 F.2d 1071 (D.C. Cir. 1987); see 

also Oxbow Mining LLC, 35 FMSHRC 932, 947 & n.3 (Apr. 2013) (ALJ) (citing Air Quality 

Standards for Abrasive Blasting and Drill Dust Control, 59 Fed. Reg. 8318, 8319 (Feb. 18, 1994) 

(indicating in preamble that inhalation of relatively small amounts of freshly fractured silica 

particles may contribute to the development of acute silicosis)); Pine Ridge Coal Co., 34 

FMSHRC 291,304 (Jan. 2012) (ALJ) (discussing “the nebulous, progressive nature of black lung 

disease . . . .”). In fact, in the context of dust sampling standard violations, the Commission has 

adopted a presumption that respirable dust hazards are reasonably likely to result in injury, 

regardless of the duration of exposure. Consol I, 8 FMSHRC at 894–99; Consolidation Coal Co., 

17 FMSHRC 250, 254 (Mar. 1995) [hereinafter “Consol II”] (“To the extent the judge suggested 

that short periods of exposure to respirable dust are exempt from the presumption . . . we agree . . 

. that he erred.”). 

Although the Commission has not extended a comparable presumption in the context of 

respirable dust hazards arising out of ventilation plan violations, the direct and indirect evidence 

before me demonstrates that the respirable dust hazard was reasonably likely to result in injury in 

this case. The machine operator was engulfed in a cloud of dust, yet he did not wear a respirator 

or mask. The sandstone roof contained quartz. Brief exposure to dust containing quartz and silica 

contributes to silicosis. In the course of continued mining operations, these conditions were 

reasonably likely to continue. Accordingly, I determine that Mathies’ fourth element has been 

satisfied. 

 Based on the forgoing, Excel’s admissions and the record before me have satisfied each 

of the four elements of Mathies. Thus, I conclude that Citation No. 8258130 was appropriately 

designated as S&S. 

 10 Excel also claims that the ventilation controls would have been removed after 

Respondent completed retreat mining in Panel 6. (Resp’t Br. at 14.) Thus, Respondent argues, 

“[t]here is no reason to assume that, upon completing advance mining in a new panel, similarly 

faulty controls would be established in the next retreat mining process.” (Id.; see also Resp’t 

Reply Br. at 6–7 (suggesting “[a]n analysis of continued normal mining operations should not 

unequivocally assume the condition would exist in perpetuity.”) However, the Commission has 

declined to assume or infer that the violative condition would be abated in continued mining 

operations. See, e.g., McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1991 (Aug. 2014); Knox 

Creek Coal Corp., 36 FMSHRC 1128, 1140–41 (May 2014); Gatliff Coal Co., Inc., 14 

FMSHRC 1982, 1986 (Dec. 1992); U.S. Steel Mining Co., 6 FMSHRC at 1574. 

36 FMSHRC Page 3241
2. Negligence

Here, Respondent has admitted that it violated the May 10 Plan because it did not provide 

the required air velocity at the continuous miner, and I have concluded that Citation No. 8258130 

was properly designated as S&S. Moreover, the Mine Act is a strict liability statute. Regardless 

of whether a miscommunication occurred, Excel had a duty to comply with its ventilation plan 

under section 75.370(a)(1). Thus, Respondent reasonably should have known of the violative 

condition. That condition also presented a danger to Excel’s miners. Accordingly, I determine 

that Respondent’s failure to fulfill its duties, thus exposing its miners to dust inhalation dangers, 

constitutes negligent conduct. Nevertheless, the Secretary has the burden of proving 

Respondent’s level of negligence. See 30 C.F.R. § 100(d) at Table X (indicating that an 

operator’s level of negligence turns not only its reason to know of the violative condition, but 

also any mitigating factors). 

In this unusual case, I am presented with arguments for three different levels of 

negligence: low (Excel); moderate (Inspector Hamilton); and high (the Secretary). Here, 

Inspector Hamilton initially marked this citation as resulting from Excel’s moderate negligence. 

However, the Secretary has asked that I increase the level of negligence from moderate to high. 

See discussion supra note 4. In support of his allegations, the Secretary claims the section 

foreman should have taken an air reading before allowing the mining machine operator to begin 

his pillar cut and notes that the foreman admitted he had not done so. (Sec’y Br. at 9–10.) Thus, 

the Secretary suggests the foreman’s “awareness of his own inaction and willingness to subject 

the miner to the, at the time, unknown danger of deficient ventilation demonstrated an absence of 

mitigating circumstances.” (Id. at 9–10.) In other words, the Secretary appears to imply 

indifference on the part of the section foreman. Cf. San Juan Coal Co., 29 FMSHRC 125, 136 

(Mar. 2007) (suggesting that high negligence often correlates with unwarrantable failure); see 

also Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) (noting that 

unwarrantable failure includes indifference, serious lack or reasonable care, reckless disregard, 

and intentional misconduct.) 

Conversely, Excel contends its conduct in this case constituted a low level of negligence. 

Excel disputes that it had reason to know the air velocity at the continuous mining machine was 

insufficient. (Resp’t Br. at 15.) Instead, Excel claims this failure resulted from a 

“miscommunication between the section foreman and the miner operator.” (Resp’t Reply Br. 

at 2.) Further, Respondent notes that Inspector Hamilton provided no indication regarding the 

duration of the violative condition. (Resp’t Br. at 15–16.) Excel therefore characterizes the 

foreman’s failure to take an air reading prior to the beginning of the pillar cut as inadvertent. 

(Resp’t Br. at 15; Resp’t Reply Br. at 2–3.) 

Based on the record before me, three factors convince me that Excel’s conduct is 

consistent with a low level of negligence. First, the Secretary’s evidence falls well short of 

demonstrating the indifference the Secretary suggests in his posthearing brief. Inspector 

Hamilton testified that the machine operator told him that he did not take an air reading because 

he believed the mine foreman had taken one. In addition, Hamilton indicated that when he 

himself worked as a section foreman, he had been trained to take readings prior to every cut of 

coal to ensure that he had sufficient air velocity. Thus, the Secretary infers indifference from the 

36 FMSHRC Page 3242
section foreman’s failure to take an air reading before the cut began. Although such a policy 

might be one effective method to ensure compliance with a ventilation plan, Hamilton admitted 

that section 75.370(a) did not require the section foreman to take an air reading at the beginning 

of every cut. (Tr. 54:22–55:19.) Moreover, Inspector Hamilton admitted that he did not know 

Excel’s practices and policies. (Tr. 80:21–81:11.) Without those details, the Secretary falls short 

of his suggested inference. Perhaps the machine operator—rather than the section foreman—

ordinarily measures the air velocity, but failed to do so in this case because he misunderstood his 

foreman. Perhaps the section foreman expected the machine operator to take an air reading. 

Hamilton is an experienced miner, but here he simply did not provide a basis to infer 

indifference on the part of the section foreman. 

Second, Excel’s history of 30 C.F.R. § 75.370(a)(1) violations in the previous two years 

(Tr. 46:15–18, 73:12–15) does not support an inference that the section foreman was indifferent. 

Inspector Hamilton could not provide any details regarding any of those prior citations or explain 

any similarities to Citation No. 8258130. (Tr. 71:2–73:11.) The Secretary need not provide 

voluminous details regarding these previous ventilation plan violations, but merely highlighting 

past violations of this far-reaching standard does not suggest to me a lack of concern for the 

machine operator’s safety in this case. I also note that Citation No. 8252975, which is the other 

citation involved in this docket, occurred the same day on the same section. That violation of the 

ventilation plan also required Excel to tighten its ventilation curtains. See discussion supra Part 

III.C.2. Although I understand the Secretary’s concern that two separate violations of the May 10 

Plan occurred on Panel 6 at the roughly the same time, neither inspector linked the violations in 

their testimony. Without more, it is unclear why this temporal link alone should demonstrate the 

section foreman’s disinterest in the safety to Excel’s miners. Under the circumstances, I cannot 

determine that the section foreman’s action or inaction constituted indifference to the 

endangerment of the machine operator. Thus, the Secretary has not shown that Excel’s level of 

negligence was high. 

Third, the Secretary’s inability to demonstrate either the duration or extent of the 

ventilation problems on Panel 6 significantly mitigates Excel’s reason to know of this violation. 

Cf. 30 C.F.R. § 100.3(d) at Table X (suggesting “low” negligence is appropriate where the 

mitigating circumstances are “considerable.”) Indeed, Hamilton found no indication in Excel’s 

preshift reports that Panel 6 had previously experienced any ventilation problems. (Tr. 54:12–

21.) Further, he could not identify which ventilation curtains were adjusted to abate the violation. 

(Tr. 52:6–8, 64:20–65:17, 74:6–12.) However, Hamilton indicated that in underground coal 

mining it is common for ventilation to leak air and to require adjustment. (Tr. 52:18–53:7.) 

Despite the significant hazard this condition presented, I recognize that mining conditions 

change rapidly. At times, such dynamism may allow methane to accumulate quickly. See

discussion infra Part V.B.1. In this context, however, the potentially brief duration significantly 

mitigates Respondent’s reason to know of the violative condition. Further, the adjustment of the 

ventilation curtains appears to be a somewhat common event in underground coal mining, and 

Excel restored the required ventilation within ten minutes. Accordingly, these minor adjustments 

also mitigate Excel’s reason to know of the violation. 

36 FMSHRC Page 3243
Notwithstanding the danger the cited condition presented, in light of the seemingly brief 

duration and minor extent, I conclude that Excel’s conduct constituted a low level of negligence, 

and Citation No. 8252975 is MODIFIED to change the cited level of negligence to low. 

B. Citation No. 8252975

While Inspector Hamilton conducted his inspection of Panel 6 that led to his issuance of 

Citation No. 8258130, his colleague Inspector Stiltner simultaneously inspected the left side of 

Panel 6. See discussion supra Part III.C.2. Stiltner likewise identified a violation of 30 C.F.R. 

§ 75.370(a)(1) and issued Citation No. 8252975. Excel again admitted that the cited conditions 

constituted a violation of its ventilation plan, but Respondent again contends that that Secretary 

has not satisfied his burden of proving his gravity and negligence allegations. See discussion 

supra Part II. 

1. Gravity

a. S&S

The Secretary claims in his posthearing brief that potential sources of methane and 

ignition sources on Panel 6 demonstrate that Citation No. 8252975 was S&S. (Sec’y Br. at 14–

16.) Specifically, the Secretary notes that methane could accumulate quickly on Panel 6 because 

the Van Lear Mine was a gassy mine. (Id. at 15–16.) The Secretary also suggests that methane 

may collect in the gob areas and leak back onto the panel if Excel did not provide adequate 

ventilation. (Id.) Finally, the Secretary claims that the continuous miner and shuttle cars provided 

ignition sources. (Id. at 16.) 

Although Respondent concedes that the first, second,11 and fourth elements of the 

Mathies test have been satisfied, Excel argues that the Secretary has not satisfied his burden of 

proving that the methane explosion hazard was reasonably likely to cause injuries. (Resp’t Br. 

 11 Respondent also claims the record is “devoid of any indication as to why [the low air 

volume] was likely to cause injury.” (Resp’t Br. at 20.) Respondent’s argument seems to conflate 

the second and third elements of Mathies. The question before me under Mathies’ third element 

is whether a methane accumulation hazard—rather than the insufficient air—is reasonably likely 

to result in reasonably serious injuries. See discussion supra Part IV.A. Nevertheless, I note that 

ventilation plans set forth minimum requirements and that Excel provided only 82% of the 

minimum required air on the section. (See Resp’t Br. at 20–21 & n.6.) 

I recognize that it might be possible to imagine a scenario where the air volume falls short 

by such an incremental margin as to have a de minimis impact on the S&S analysis. Yet, a nearly 

twenty percent shortfall of the minimum requirement is no such minor misstep. The plan’s 

minimum air volume was intended to sweep methane and harmful gases away from the working 

section and through the gob. It also helped ensure methane and gases did not seep back onto the 

section. Notwithstanding the concessions in Excel’s posthearing brief—and to the extent that 

Respondent’s argument might be construed as an argument regarding Mathies’ second 

element—I therefore determine that the violation of the ventilation plan contributed to a discrete 

safety hazard. 

36 FMSHRC Page 3244
at 16–22.) First, Excel notes that no methane was present at the time of the inspection and 

disputes whether a roof fall would force methane out of the gob and into the working area. (Id. at 

18–19.) Second, Excel argues that the Van Lear Mine liberated less methane during the retreat 

mining of Panel 6 than it did during advance mining. (Id. at 21–22.) Respondent therefore 

surmises that the confluence of factors do not demonstrate that a methane ignition hazard was 

reasonably likely to result in injury. (Id. at 22.) 

Looking at the evidence before me, it is uncontroverted that sparks from the continuous 

mining process would provide an ignition source. Thus, this case turns on whether methane gas 

would be present in the course of continued mining operations. As the Secretary notes, the Van 

Lear Mine is a gassy mine that liberated more than 500,000 cubic feet of methane every twentyhour hours. Indeed, the high levels of methane liberation at Van Lear prompted MSHA to 

perform spot inspections at the mine every ten days. 

Furthermore, MSHA required the mine to provide ventilation pressure through the gob 

area and out of the bleeder system to prevent accumulation of methane in the gob. Regardless of 

what air pressure must be maintained at the back side of the gob and bleeder blocks, Excel fell 

well short of the 13,000 c.f.m. required on the working section. Insufficient air pressure through 

the gob would allow methane to accumulate in the course of continued mining operations. If a 

roof fall occurred in the gob area, some of that methane might be forced back on to the working 

section. As Stiltner explained, the minimum requirements of a ventilation plan are critical: “If 

[10,000 c.f.m. were enough air], they would probably have 10,000 in their plan. So there was a 

reason it was 13,000. It was either the mine being on the [ten-day] spot or a history of 

methane. . . . So evidently, 10[,000] wasn’t enough.” (Tr. 117:16–20.) 

In addition, I accord little weight to Mine Engineer Arrington’s testimony that the pillars 

removed in retreat mining liberate smaller amounts of methane because some of the pillars’ 

methane has escaped as the advance mining process bored deeper into the mine. (Tr. 176:17–

177:8, 178:21–179:10.) Although Stiltner agreed that methane would continue to escape from the 

coal pillars as the operator advanced (Tr. 153:25–154:22), neither Arrington nor Stiltner 

quantified, either in terms of cubic feet or percentages, the amount of methane that would 

dissipate from the coal pillars between the advance mining and retreat mining phases. Without 

that critical detail, I have no basis to infer that the Van Lear mine’s retreat mining panels were no 

longer “gassy.” Moreover, Arrington did not address Stiltner’s testimony that a roof fall in the 

gob area could force methane back onto the working section, providing fuel for an ignition. 

Here, the Secretary has demonstrated that ignition and methane sources would be present 

in the course of continued mining operations. In light of the record and confluence of factors 

before me, I determine that a methane ignition hazard was reasonably likely to cause injuries in 

the course of continued mining operations, which satisfies Mathies’ third element. Given Excel’s 

concession of the remaining elements of the Mathies test, I therefore conclude that Citation No. 

8272975 was properly designated as S&S. 

b. Number of Miners Affected

The Secretary claims that the deficiency in airflow affected the safety of all five miners 

on the 007 MMU because the intake air was used to ventilate the whole section and miners work 

36 FMSHRC Page 3245
in close proximity during retreat mining. (Sec’y Br. at 17.) In contrast, Excel contends that the 

violative condition did not affect five miners and asks that I reduce the number of miners from 

five to two.12 (Resp’t Br. at 23.) Looking at the evidence before me, I note that two of the 

members of the 007 MMU were located in the No. 3 Entry as the miner prepared to cut in the 

No. 2 Entry. However, Stiltner specifically testified that miners work in close proximity during 

the retreat mining phase. (Tr. 112:8–13.) In light of the record, I determine that these miners 

would have returned in close proximity to the continuous mining machine in the course of 

continued mining operations. Accordingly, I conclude that Citation No. 8252975 would affect 

five miners. 

2. Negligence

The Secretary’s argument in this case reiterates his negligence theory for Citation No. 

8258130: Excel was negligent because the section foreman or miner was responsible for taking 

air readings during his preshift examination, but failed to do so. (See Sec’y Br. at 17.) Yet, unlike

Citation No. 8258130, the Secretary characterizes Respondent’s negligence in this case as 

“moderate” rather than “high.” 

Given the similarities between the cases, it is unclear why the Secretary’s theory leads to 

different results for the two violations before me. As with Citation No. 8258130, I have 

concluded that Citation No. 8252975 was appropriately designated as S&S in the context of 

continued mining operations. Like his colleague, Inspector Stiltner was unable to describe 

similarities between Citation No. 8252975 and any of those violations. (Tr. 139:25–141:2, 

120:22–121:6, 134:17–21, 135:8–12, 146:2–146:8.) Stiltner also admitted that that he did not 

know how long the violative condition existed and could not describe the details of the curtain 

adjustments Excel made on Panel 6. (Tr. 141:7–142:2.) Finally, those curtain adjustments were 

completed in just a half-an-hour, which suggests they were not extensive. 

In light of the record before me and similarities between the cases, I again conclude that 

Excel’s level of negligence was low. Excel has a duty to maintain the required air velocity, and 

Respondent was negligent in failing to ensure it had the required air coursing through this section 

before mining. Nevertheless, the Secretary has provided no evidence describing that these 

conditions existed for a significant amount of time or extended across a large portion of Panel 6. 

He also presented no evidence regarding Respondent’s air measurement policies or linking the 

present violation to any of the fifty previous ventilation plan violations at the Van Lear Mine. 

Finally, Respondent was able to restore the required air flow in just thirty minutes. Accordingly, 

the apparent short duration and limited extent of the ventilation failure on Panel 6 significantly 

 12 Respondent also claims in its posthearing brief that the two shuttle car operators would 

have never been in close proximity to the continuous miner at the same time because they took 

turns loading coal at the miner and dumping it at the belt feeder. (Resp’t Br. at 23.) Yet Excel 

provides no support in the record for that claim. I note that two company representatives—Curtis 

Webb and Mike Hurley—travelled with Inspectors Stiltner and Hamilton on January 24. Perhaps 

Webb and Hurley would have provided evidence to support this position, but neither appeared at 

the hearing. Instead, Excel only presented testimony from Mine Engineer Arrington, who was 

not on Panel 6 that day and provided no evidence regarding the number of miners that would be 

affected. 

36 FMSHRC Page 3246
mitigates Respondent’s negligence in this case. 30 C.F.R. § 100.3(d) at Table X (suggesting 

“low” negligence is appropriate where the mitigating circumstances are “considerable.”) 

Based on the above, I determine that Excel’s conduct constituted “low” negligence, and 

Citation No. 8252975 is MODIFIED to change the cited level of negligence to low. 

C. Penalty Assessment

 Turning to the six penalty factors specified in section 110(i) of the Mine Act, I note that 

Excel has stipulated that the proposed penalty would not affect its ability to remain in business. 

(Ex. J–1 at 2.) Moreover, nothing in the record suggests the proposed penalties are inappropriate 

for the size of the mine, and I also note that Respondent promptly abated each citation in good 

faith. Although I have affirmed the Secretary’s gravity determinations, I have modified each 

citation to reduce Excel’s level of negligence to “low.” Finally, the Secretary’s Assessed 

Violation History Report lists 37 final citations or orders within the previous fifteen months at 

the Van Lear Mine that involved 30 C.F.R. § 75.370(a)(1). Of those final citations and orders, 

only six were designated as S&S. 

 I recognize that the Secretary has proposed special assessments of $13,600.00 and 

$11,500.00, respectively, for Citation Nos. 8258130 and 8252975. However, the Secretary’s 

proposed penalties are not binding upon me. I also recognize that both violations exposed 

Excel’s miners to serious dangers. Had the Secretary demonstrated the substandard air velocity 

existed for a significant amount of time or required major efforts to restore the required air flow, 

had resulted from poor internal policies at Excel, or had been a recurring problem at the Van 

Lear Mine, I might have been inclined to affirm his negligence determinations and, therefore, his 

proposed penalties. However, I note that the Secretary presented no evidence demonstrating the 

duration or extent of the conditions in question. Likewise, he provided no evidence suggesting 

Respondent’s policies led to the low air velocity or that low air velocity at the miner or in the 

intake entry was an on-going problem at the mine. As I noted, conditions often change rapidly in 

an underground mine. Given this rapidly changing environment, even a fastidious operator may 

sometimes fail to provide the air velocities required under their plans. The Mine Act is a strict 

liability statute, and this dynamic environment does not excuse those failures. However, I have 

determined Respondent’s negligence to have been low. I therefore determine that a penalty of 

$4,000.00 for each violation is appropriate based on the six section 110(i) factors. 

36 FMSHRC Page 3247
VI. ORDER

In light of the foregoing, I hereby ORDER that Citation Nos. 8258130 and 8252975 are 

AFFIRMED as S&S and MODIFIED to reduce the level of negligence from “moderate” to 

“low.” Excel Mining, LLC is ORDERED to PAY a civil penalty of $8,000.00 within 40 days of 

this decision. 

 /s/ Alan G. Paez

 Alan G. Paez 

 Administrative Law Judge 

Distribution: 

 

Anthony M. Berry, Esq., U.S. Department of Labor, Office of the Solicitor, 211 Seventh Avenue 

North, Suite 420, Nashville, TN 37219 

Tyler H. Fields, Esq., Excel Mining, LLC, 1146 Monarch Street, Lexington, KY 40513 

/pjv 

36 FMSHRC Page 3248
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

December 5, 2014 

DECISION

Appearances: Ronald Gottlieb, Esq., Office of the Solicitor, U.S. Department Labor, 

Denver, Colorado for Petitioner 

Donna Pryor, Esq., Breyana Penn, Esq., Jackson Lewis P.C., Denver, 

Colorado for Respondent 

Before: Judge Moran 

This case is before the Court upon a petition for assessment of a civil penalty under 

section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The 

Secretary’s petition alleges that an MSHA Inspector, who was at Portable’s Mine for the purpose 

of conducting an inspection, was refused entry for a period of time in that the start of MSHA’s 

inspection was delayed by approximately one-half hour. The delay stemmed from the operator’s 

claim that a safety escort was needed to accompany the Inspector. As a consequence of the delay, 

MSHA contends that Portable unreasonably delayed the inspection, in violation of section 103(a) 

of the Mine Act, 30 U.S.C. § 813(a). As an alternative theory of liability, the Secretary asserts 

that Portable violated section 103(a)’s prohibition against giving mine personnel advance notice 

of an inspection. A hearing was held in Bozeman, Montana and both parties submitted posthearing briefs. For the reasons which follow, the Court, finding that neither theory of liability 

was established by a preponderance of the evidence, vacates the citation and dismisses the 

matter. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

 PORTABLE, INC., 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. WEST 2013-526-M 

A.C. No. 24-02016-314135 

Mine: Wash Plant 

36 FMSHRC Page 3249
Findings of Fact and Conclusions of Law

Portable, Inc., a subsidiary of Kenyon Noble Ready Mix, is a small, six employee, sand 

and gravel operation. Tr. 20, 164. It extracts aggregate from the ground and transfers that 

material with a loader to a crusher, which then sizes the material, according to the product 

needed. Tr 165. After being sized, the product is placed onto a conveyor belt where it is sent to 

the wash plant. From there, as a final step, a loader places the product in its designated pile. Id.

Portable’s products are sold to the public and to Kenyon Noble Ready Mix, for concrete. Tr. 20, 

165.

On August 16, 2012, MSHA’s Dennis Bellfi1 arrived at Portable to perform a general 

inspection. Tr. 19. At that time Bellfi’s usual job was as an MSHA conference and litigation 

representative (“CLR”) out of Denver, Colorado, but he was asked by the Montana area MSHA 

office to temporarily help that office with its required inspections. Tr. 19. Five of Portable’s six 

employees were working at the mine on the day of the inspection. Tr. 164. 

According to his testimony, Inspector Bellfi stated that when he arrived at Portable on 

that date, he proceeded past a small entry gate. He then flagged down a loader operator, who was 

working at the wash plant, and inquired about where he could find the person in charge. Tr. 20-

21. As Bellfi was speaking with the loader operator, laborer Kevin Bright joined them and the 

Inspector again asked where to find the person in charge. Tr. 21. Mr. Bright told the Inspector 

that Scott Miller, the general manager, was not on site. Bellfi stated that Bright then proceeded to 

the front office and returned 5 to 7 minutes later, explaining to him that the Inspector needed to 

sign in at the front office and that someone would then accompany him on the inspection. Tr. 22. 

Bellfi, while maintaining that he did not need to sign in, agreed to go to the front office to obtain 

an escort. Tr. 22. 

Bellfi testified that, once at the office, he spoke with Eric Edwards, an employee of 

Kenyon Noble Ready Mix, who asked him to sign in as a visitor. Tr. 23, 141. Inspector Bellfi 

refused since, as a matter of practice, he did not consider himself to be a visitor. Tr. 23, 58-59, 

68. Mr. Edwards then told him that, for safety reasons, it was company policy to escort any 

visitor. Tr. 24. Edwards did not provide the Inspector with any estimate of how long it would 

take to locate an escort. Tr. 24. Inspector Bellfi told Edwards that he knew how to be safe in the 

mine and that he was ready to begin his inspection. Tr. 24-25. However, the Inspector did not, at 

that time, tell Edwards that he had the right to inspect the mine without an escort, nor did he 

advise that a citation could be issued for denying him access to the mine. Tr. 54, 55. Bellfi stated 

that Edwards then explained to him that Jennifer Rather,2

 the Safety Director, was doing payroll 

at the corporate office and would get to the mine when she was able. Tr. 25. 

 1

 Inspector Bellfi has been an MSHA conference and litigation representative for over 2 

years. Prior to that, he was an MSHA mine inspector for about 5 years, performing close to 300 

inspections. Tr. 17. 

2

 Ms. Rather is employed by several companies, including Portable, Kenyon Ready Mix 

and other companies, all in the capacity as a human resources and safety director. She has been 

employed by these companies for 15 years. Tr. 162. 

36 FMSHRC Page 3250
Bellfi stated that he then told Edwards that the longer it took to obtain an escort, the more 

inclined he was to issue a citation for impeding the inspection. Tr. 25-26. However, Bellfi then 

told Edwards that he would “go ahead and wait downstairs for [Edwards] to get an escort.” Tr. 

26. He then related that 5 to 10 minutes later, Edwards informed him that they were having 

trouble locating someone to escort him and that they were going to shut down the crusher3 so 

that the crusher operator, Tom Hamilton, could accompany him. Tr. 26-27. Bellfi stated that he 

repeated that the longer he had to wait, the more inclined he was to issue a citation for impeding 

the inspection. Tr. 27. Approximately 20 minutes later, Edwards came back and it was then that 

he informed Edwards that he had waited “longer than necessary” and that he was going to issue a 

section 103(a) citation for impeding his inspection. Tr. 27. Edwards’ response was that Ms. 

Rather advised that the Inspector could start his inspection by himself. Tr. 27, 43-44, 103. 

Based on those events, Citation No. 8587084 was issued on August 16, 2012 by Inspector 

Bellfi, pursuant to section 104(a) of the Mine Act. The citation alleges a violation of section 

103(a) of the Act, which requires the Secretary to make frequent inspections and investigations 

of mines. In doing so, the Secretary is not required to provide advance notice and has the right of 

entry to, upon, or through any mine. The violation was described in the citation as follows: 

On 08/16/2012[,] the dispatcher and Tom Hamilton, Crusher Operator and person 

in charge at the mine[,] refused to allow Dennis Bellfi, an authorized 

representative of the Secretary, entry into the Portable Inc. Wash Plant Mine for 

the purpose of conducting an inspection of the mine pursuant to Section 103(a) of 

the Act. Tom Hamilton[,] via the dispatcher[,] stated that the Federal Inspector 

could not enter the mine without being escorted by a company official. No 

company official was provided and thus delayed the inspection. After waiting 30 

minutes[,] this inspector was advised by Jennifer Rather, Safety Director[,] via the 

dispatcher that the inspection could commence without [an] escort. This condition 

has not been designated as “significant and substantial” because the conduct 

violated a provision of the Mine Act rather than a mandatory safety or health 

standard. 

Ex. S-2. 

Bellfi determined that there was no likelihood the violation would result in illness or 

injury, that such injury or illness could reasonably be expected to result in no lost workdays, that 

no persons were affected, but that the negligence level was deemed to be high. The Secretary 

proposed a specially assessed penalty of $1,000.00. 

Inspector Bellfi informed that, prior to becoming a CLR, when he used to conduct MSHA 

mine inspections on a full-time basis, he would generally wait about 5 minutes for an escort. Tr. 

19, 53. If an escort was not present within that period of time, Bellfi would begin the inspection 

and tell mine personnel that the escort could meet up with him. Tr. 19, 54. The Inspector advised 

 3

 Shutting down the crusher concerned Bellfi because he preferred to view the mine while 

it was operational. Tr. 50-51. However, Bellfi did not express this concern to Edwards or any 

other Portable employee. Id. 

36 FMSHRC Page 3251
that he was trained to allow time for an operator to get a mine representative to accompany him 

during an inspection, as long as doing so did not unduly delay the inspection. Tr. 39. It was 

Bellfi’s view that Portable was in violation of section 103(a) of the Act because it refused to 

allow him to inspect the mine by telling him that he needed an escort to enter mine property, then 

failing to provide one for 30 minutes, before then allowing him to begin his inspection without 

an escort. Tr. 39-41. He considered these actions to be an indirect denial of the inspection. Tr. 

81; Ex. R-17. Bellfi believed that other employees, besides Hamilton and Rather, could have 

escorted him, though he did “suppose” that an operator could designate the escort. Tr. 41, 57. On 

cross-examination Inspector Bellfi admitted that he never explained to Eric Edwards, or to 

anyone at Portable, that there are inspection requirements under 103(a). Tr. 55. 

 Bellfi started his inspection once Edwards told him he could start alone and he was joined 

by Mr. Hamilton, the crusher operator, approximately 10 to 20 minutes later. Tr. 28, 31. It was 

the Inspector’s testimony that during his inspection he noticed “that there were guards that had 

had different types of [ ] bolts in the guarding.” Tr. 29. There were four or five clean, shiny, new 

washers and bolts next to rusted bolts and washers on different areas on different screens or 

guards. Tr. 30. He was unsure how long they had been there, but when pressed, he added that it 

could have been “[a] couple of days to a week.” Tr. 30. Bellfi also observed one berm on the 

crusher feed ramp that had, what he assumed was new dirt, piled on the edge of it. Tr. 32. He 

estimated the area of the fresh dirt to be about 10 to 15 feet across and that it had been placed 

there within the hour based on the fact that it looked wet.4

 Tr. 34. However, Inspector Bellfi did 

not include the berm or bolt and washer observations in his notes on the day of the inspection, 

assertedly because he did not think it was an issue at the time. Tr. 77. It was not until after the 

inspection that Bellfi determined that such safety corrections could have been made during the 

time that he was waiting for an escort. It was such afterthoughts that prompted MSHA’s 

alternative theory of liability, that Portable gave advance notice of the inspection. 

 As noted, the Inspector raised two grounds, new bolts and fresh berm dirt, in support of 

the claim of advance notice.5 The Inspector acknowledged that he arrived for his inspection of 

the mine in the afternoon. Tr. 80-81. He claimed that the dirt moved on to the berm could have 

occurred after his arrival. He admitted that it is not normal practice to change bolts or washers on 

a crusher while it is running. Further, he did not ask anyone during his inspection when the bolts 

and washers were last changed, nor did he ask for any maintenance records as a source for 

indicating when maintenance was last done on the crusher. Similarly, he failed to ask anyone 

during his inspection when the berms had been created. Tr. 86-87. 

 The Court noted that these matters were simply suspicions on the Inspector’s part, and 

that the Inspector was unable to state definitively when those actions, regarding the berms and 

the bolts, were taken. In fact, when that question was then expressly posed to the Inspector, he 

conceded that he could not prove that either of the actions were taken during the interval in 

which he was delayed. Tr. 90-93. Bellfi then acknowledged that the basis for his advance notice 

 4

 Bellfi made the assumption that the dirt should have been dry and crusted on the top 

because it was hot on the day of the inspection. Tr. 32. 

5

 As the Inspector issued his impeding notice before seeing the berm dirt and new bolts, 

these contentions have relevance only to the claim of advance notice. 

36 FMSHRC Page 3252
allegation was that Eric Edwards or Jenifer Rather had contacted Tom Hamilton. However, 

based upon all the evidence of record, the Court does not agree that such an inference is fair. 

The contact with Mr. Hamilton was simply for the purpose of finding an escort at Portable’s very 

small operation. Tr. 51. 

Curt Petty was the MSHA Field Supervisor6 of the Helena, Montana office at the time 

that the citation was issued and in that capacity he considered himself Bellfi’s boss for the time 

Bellfi was temporarily assigned to the Helena office. Tr. 119, 125. Inspectors working under 

Supervisor Petty were instructed to call him before issuing a citation for impeding. Tr. 125, 133. 

Inspector Bellfi admitted that he did not do that but he insisted that inspectors are only supposed 

to contact their supervisors if they are denied entry after issuing a citation. Tr. 84, 85; Ex. R-22 

at 39-40. Supervisor Petty testified that once the inspector explains to mine personnel that they 

have the right to inspect the mine immediately, there is no timeline for issuing such an 

impedance citation. The Court, wanting additional precision about this, asked if that meant that 

once an inspector informs that there is a right to inspect, there is to be no delay and the inspector 

should be permitted to begin his inspection immediately. Mr. Petty agreed with that description. 

Tr. 120-21. 

When asked to describe his experiences with waiting for mine representative 

escorts, Supervisor Petty testified that he had conducted and been present for hundreds of 

inspections, and for some of those he waited 30 minutes or longer for an escort and that he did 

not issue a citation for impeding an inspection in any of those instances. Tr. 124, 132. He also 

stated that he had inspected Portable twice in the past and had waited about 15 to 20 minutes for 

Ms. Rather to meet him at the mine the first time. No citation was issued for impeding an 

inspection then either. 

Mr. Edwards, who Inspector Bellfi acknowledged was not an employee of Portable and 

that he was untrained in MSHA standards, testified that he never asserted to Inspector Bellfi that 

the property could not be inspected. Tr. 143-44, 147. Edwards stated that he called Mr. 

Hamilton, who was operating the crusher at the time, to ask him to escort the Inspector and 

called Ms. Rather to let her know that he was attempting to have Hamilton escort Bellfi. Tr. 147. 

Edwards followed up with Hamilton 10 minutes later and Hamilton informed him that Richard 

Van Dyke, the other crusher operator, was not on-site and therefore he had to shut the crusher 

down. Tr. 148. Mr. Edwards maintained that, when he told the Inspector that Hamilton was 

shutting the crusher down and would then escort him, Bellfi then wrote the citation. Tr. 148-49. 

According to Edwards, Bellfi did not discuss his authority under section 103(a), prior to issuing 

the citation. Tr. 149. 

 In the 15 years that Ms. Rather has worked for Portable she could not remember any 

MSHA inspector that did not check in at the front office before conducting the inspection. Tr. 

170-177. She explained that Portable’s policy is to have a representative accompany anyone 

traveling on the mine site, including MSHA inspectors. Tr. 172-73. According to Ms. Rather, the 

designated representatives allowed to escort MSHA inspectors are the managers, which consist 

 6

 Petty has been with MSHA for 16 years, 12 of which were as a field supervisor and 4 of 

which were as a metal/non-metal inspector. Tr. 121, 123. 

36 FMSHRC Page 3253
of herself, Scott Miller, and Tom Hamilton, because they are the most knowledgeable and 

experienced employees. Tr. 173, 176. 

 Over those 15 years, Ms. Rather has joined the MSHA inspector on every inspection 

except one, when she was away on travel. Tr. 176. She primarily works at Kenyon Noble’s 

corporate office in Bozeman, Montana which is approximately an 8 to 10 minute drive to 

Portable. Tr. 172. The practice employed when the MSHA inspector arrives at the mine site is 

for an employee from the front office to call and so inform her of the inspector’s presence. Tr. 

177. Ms. Rather asserted that, historically, inspectors have waited anywhere from 10 to 30 

minutes for her to then arrive to accompany them. Tr. 178. 

 On the date of this incident, August 16, Ms. Rather was doing payroll for Kenyon 

Noble’s 280 employees and therefore was not available to accompany the inspector that day, as 

the company pays its employees on the 16th of each month. Tr. 178. Because Miller was out, 

Hamilton was the only other authorized representative of the mine that could escort the 

inspector. As mentioned, Mr. Van Dyke, who had the day off, was contacted by Hamilton to see 

if he could cover for him while the inspection took place. Tr. 180, 183. When Rather was later 

told that Van Dyke was out of town, she telephoned Hamilton and told him to shut down the 

crusher. Tr. 183. Hamilton confirmed that he called Van Dyke to cover for him but, because he 

was too far away, Hamilton had to shut the crusher down, a process that takes approximately 25 

minutes. Tr. 211, 217. 

Ms. Rather further testified that she was never told by Mr. Edwards that Inspector Bellfi 

was threatening to issue a citation for impeding an inspection. Tr. 184. She also assured the 

Court that new procedures have been put in place to prevent a recurrence of the type of delay that 

occurred on August 16. Tr. 200-01. The Court considers this to be tangential, yet important, as 

Portable has assured that there will not be a repeat of this misunderstanding. 

Discussion

The Secretary states that section 103(a) is violated if a mine operator unreasonably delays 

the start of an inspection by denying the inspector access to the mine. As a principle, the Court 

agrees with that contention, but the issue here is whether, in the context of the findings of fact, 

there was an unreasonable delay in this instance. As mentioned, as an alternative theory of 

liability, the Secretary contends that Portable violated section 103(a)’s prohibition against giving 

mine personnel advance notice of an inspection. 

The unreasonable delay contention will be discussed first. The Secretary notes that 

Section 103(a) of the Act prohibits an operator from interfering with an inspection, and that such 

interference includes that which is caused by unreasonable delay or where an operator’s actions 

have the effect of frustrating the Secretary’s legitimate objectives. Topper Coal Co., 17 

FMSHRC 945, 948 (June 1995) (ALJ); Calvin Black Enters., 7 FMSHRC 1151, 1156-57 (1985); 

Spiro Mining, LLC, 33 FMSHRC 3255, 3257 (Dec. 2011) (ALJ). Here, the Secretary 

acknowledges that the 30 minute delay was an indirect denial of the right to inspect. Inspector 

Belfi himself so characterized the delay as an indirect denial. Tr. 81, 84. Nevertheless, the 

Secretary contends that the delay was unreasonable in this instance because Portable’s safety 

36 FMSHRC Page 3254
policy did not apply to MSHA inspectors, because Portable placed its interest in allowing Ms. 

Rather and Mr. Hamilton to continue their work duties over MSHA’s interest in conducting an 

inspection,7

 and because the delay frustrated MSHA’s legitimate objective to observe the mine 

when it is operating. Sec’y Br. at 7 - 9. As applied to the particular facts here, the Court finds that 

none of these contentions are meritorious. 

The Secretary8 asserts that Portable’s argument that the delay was prompted by its 

inability to find an escort to accompany the inspector ignores that, in circumstances when an 

operator’s preferred representative is busy, it is the operator’s responsibility to find a substitute. 

It adds that, if no substitute is available, the operator must permit the inspector to conduct the 

inspection unaccompanied. Sec’y Br. at 15-16, citing F.R. Carroll Inc., 26 FMSHRC 97, 102 

(2004). Last, the Secretary maintains that any of three other employees who were on site on the 

day of the inspection could have escorted Bellfi and therefore not delayed the start of his 

inspection. 

The Secretary’s arguments for upholding the citation are significantly based on the 

assumption that Portable refused to allow Bellfi to start his inspection and that he was legally 

entitled to commence the inspection without undue delay. Sec’y Br. at 10. The latter contention 

is not disputed. Both sides agree that an inspector is entitled to inspect without undue delay. 

However, as to the former contention, the Court has previously stated that it finds that there was 

no indirect denial of entry. It is further noted that the Inspector never attempted to explain his 

authority, nor did he simply start his inspection. On these facts it is clear that the Inspector chose 

to wait much longer than his normal amount of time for an escort. As he stated, he would usually 

start the inspection after five (5) minutes, proceeding unaccompanied, if necessary. 

There was no testimony or documentary evidence presented by either side that Bellfi was 

told that he was not permitted to inspect the mine at any point during the 30 minute waiting 

period despite the description in the citation suggesting otherwise.9 On the contrary, Edwards 

 7

 For the sake of completeness only, it is noted that the Secretary observes that Bellfi was 

not bound by Portable’s safety policy. That is true and this decision does not suggest otherwise. 

Beyond that, it is noted that Mr. Edwards was a marginal figure in this matter. He was an 

employee of Kenyon Noble, not Portable, and had not been trained in MSHA regulations. On 

this record, it appears that Edwards simply miscommunicated Portable’s company policy to 

Bellfi. 

8

 Both parties addressed Portable’s right to have a representative present during the 

inspection under section 103(f). Resp. Br. at 12; Sec’y Br. at 14. The court does not find this 

argument relevant to determining whether section 103(a) was violated in this case because 

Portable sought to have a representative present and Bellfi allowed Portable the opportunity to 

have a representative present by waiting for 30 minutes before issuing a 103(a) citation and 

beginning his inspection. 

9

 This is distinguishable from the facts in F.R. Carroll where the inspector repeatedly 

asked the operator to allow him to proceed with the inspection, and told mine personnel that a 5 

hour delay could not be granted. F.R. Carroll, 26 FMSHRC at 102. 

36 FMSHRC Page 3255
had returned to Bellfi to tell him the crusher was being shut down and he could begin the 

inspection unaccompanied when Bellfi decided to issue the citation. Further, Bellfi never told 

Edwards he had a right to inspect the mine,10 nor did he attempt to start his inspection despite 

testifying that he would normally only wait 5 minutes for an escort before beginning. These 

actions also diminish the Inspector’s claim that Portable’s actions constituted an indirect denial. 

In the Program Policy Manual (PPM), a source of MSHA’s interpretation and guidelines on 

enforcement of the Act, indirect denials are “those in which an operator or his agent does not 

directly refuse right of entry, but takes roundabout action to prevent inspection of the mine by 

interference, delays, or harassment. There must be a clear indication of intent and proof of 

indirectly denying entry.” Ex. R-27 at 2. Based on the above actions taken by Portable, the court 

finds that the record does not evidence such “clear indication of intent and proof of indirectly 

denying entry,” and accordingly it is found that the Respondent did not exhibit the intent to 

indirectly deny access or otherwise delay the inspection.11 

In addition, testimony from Supervisor Petty and Ms. Rather regarding past practices 

were particularly enlightening. Petty had performed or accompanied hundreds of inspections in 

the past, sometimes waiting 30 or more minutes for an escort before beginning the inspection. 

No citations for impeding were issued as a result of those prior wait times. Petty also explained 

that MSHA protocol was for inspectors to tell mine personnel that they had a right to inspect the 

mine immediately and that, after so informing, there was no timeline for issuing the citation for 

impeding. There is no indication that Bellfi did this. Ms. Rather had been present for all 

inspections at Portable, except for one, prior to August 16, 2012, and she never had an issue with 

an inspector waiting up to 30 minutes for her to arrive and be an escort. While a lack of past 

enforcement by MSHA cannot be the sole reason for vacating this citation, the Secretary’s 

previous interactions with Portable set the stage for its expectations, and was indicative of the 

amount of time it considered to be a reasonable period to wait. 

Thus, it is fair to state that Portable’s past experience with MSHA inspections led it to 

believe that it was acting in a manner consistent with those experiences, and therefore that it was 

not thwarting any inspection. What was remarkably different here is that Portable was dealing 

with a new inspector, one who was temporarily assisting the Helena, Montana office with its 

 10 Bellfi did testify at hearing that he told Edwards the longer he had to wait, the more 

inclined he would be to issue a citation for impeding. Respondent pointed out that the Inspector 

did not mention this in his depositions, nor does this claim appear in his notes. Tr. 101-02; Ex. R22. When questioned, Bellfi stated that he remembered this while reviewing the case prior to 

hearing. Id. These observations undercut the Inspector’s assertion. 

11 With regard to the above facts and the Secretary’s position about the delay frustrating 

his legitimate objective to view the mine while in operation, it appears to the Court that he is 

trying to argue both sides. On one hand he states that Hamilton should have been instructed to 

shut down the crusher immediately so that Bellfi could begin his inspection. Sec’y Br. at 16. 

In depositions on February 2, 2014, Bellfi stated that it would not have mattered whether the 

crusher was operating if he was able begin his inspection promptly. Ex. R-22 at 21-22. On the 

other hand, the Secretary states he has a legitimate interest in seeing the mine in operation – an 

attempt made by Hamilton when he called Van Dyke to take over for him so that he could escort 

Bellfi. It seems that the Secretary would not have been satisfied with either scenario. 

36 FMSHRC Page 3256
inspection responsibilities, and who lacked the institutional knowledge of the interactions 

between that local MSHA office and Portable’s operation. It is fair to state that no claim of 

indirect denial, nor the advance notice claim, would have arisen but for the temporary inspector’s 

lack of appreciation of the protocol that MSHA had been observing with Portable. 

As noted, in the alternative, the Secretary has argued that Portable violated section 

103(a)’s prohibition against giving mine personnel advance notice of an inspection. Sec’y Br. at 

8. He states that because Edwards and Rather told Hamilton that MSHA had arrived to conduct 

an inspection 30 minutes before Bellfi was permitted to start the inspection, Portable violated 

section 103(a). Id. This contention has largely been discussed. However a few additional remarks 

follow. 

Bellfi testified that the depositions of Rather, Edwards and Hamilton revealed that Rather 

made phone calls to Hamilton, telling him that Bellfi was at the mine to conduct an inspection 

and needed an escort. Tr. 51, 93. Edwards also told Hamilton that Bellfi was at the mine to 

conduct an inspection and needed an escort. Tr. 73-74, 93. Bellfi asserted that these actions 

constituted advance notice. However, he did not believe that talking to Bright or the loader 

operator was the equivalent of advance notice because he was ready to conduct his inspection at 

that moment. Tr. 71. Bellfi maintained that Edwards and Rather should not have told Hamilton to 

escort him specifically for an inspection and that it should not have been disclosed that he was 

there for an “inspection.” Tr. 95. Bellfi did not give this instruction or recommendation to Bright, 

the loader operator, Edwards, or Rather. Tr. 71-72, 96. It should also be remembered that this is a 

very small, six employee, operation. 

Section 103(a) of the Act states that “no advance notice of an inspection shall be 

provided to any person.” It is acknowledged that this is important to the health and safety of 

miners because it helps to ensure that operators do not conceal or address hazardous conditions 

before the inspector observes them. However, the court finds the Secretary’s argument lacks 

merit in this case. The Secretary did not believe that Rather was given advance notice when she 

was contacted by Edwards. Even if Rather was not doing payroll and could leave for the mine 

promptly, she still would have taken at least 8 to 10 minutes to get to the mine. Bellfi’s argument 

appears to hinge on the use of the word “inspection,” but both Rather and Edwards were told that 

Bellfi was there for an inspection. Bright and the loader operator were informed by Bellfi himself 

when he arrived that he was there to conduct an inspection. While Bellfi was ready to conduct 

his inspection at that moment, he did not start performing the inspection until 30 minutes later, 

yet Bellfi did not consider this to be advance notice. The court fails to see how informing 

Hamilton was distinguishable from informing Rather or Edwards. Most of Portable’s employees 

were aware that an inspection was imminent by the time Hamilton was contacted. Again, 

Portable never told Bellfi that he could not begin his inspection and Bellfi never attempted to do 

so. 

In addition, Hamilton was clearly contacted about Bellfi’s presence so that he could be an 

escort. In this respect, the situation at bar is distinguishable from other advance notice cases. See 

Topper Coal Co., 20 FMSHRC 344 (Apr. 1998) (Commission upheld citation for a 103(a) 

violation where an operator warned miners that MSHA inspectors were entering the mine and to 

“watch out and be careful” despite being instructed by the inspectors not to tell anyone about 

36 FMSHRC Page 3257
their presence.); Cougar Coal Co., 17 FMSHRC 628 (Apr. 1995) (ALJ upheld citation for a 

103(a) violation where surface personnel alerted underground miners of the inspectors’ presence 

despite being told not to do so.) 

Based on the above, the court finds that notifying Hamilton of Bellfi’s presence is clearly 

distinguishable from other cases where a violation of section 103(a) was found for providing 

advance notice. As a result, the court finds that Rather’s and Edwards’ communications to 

Hamilton did not constitute advance notice in violation of section 103(a). 

As noted, the Secretary further alleges that Portable corrected hazardous conditions, or 

had the opportunity to do so, while Bellfi was waiting for an escort. Sec’y Br. at 11. However, 

for this alternative liability theory of advance warning, the record simply does not support the 

conclusion that such activity occurred. This conclusion is consistent with the facts associated 

with the unreasonable delay claim and, beyond that, the indicia that the visiting inspector pointed 

to support this afterthought theory of liability, that is the fresh bolts and berms, were not 

established under the preponderance of evidence burden as having occurred during the 30 minute 

window of time that forms the foundation for either theory. 

Inspector Bellfi arrived in the afternoon of August 16, but stated in his memo to the 

district manager, supporting the citation, that the dirt on the berm had been moved the morning

of August 16. Tr. 79-80; Ex. R-17. In addition, Bellfi did not ask anyone at the mine when the 

bolts and washers were last changed, and conceded that it was not normal practice to change 

them while the crusher was running, as it was on the day of the inspection. Tr. 86-87. He also did 

not request maintenance records to see when these tasks were performed because he did not 

think it was relevant, and no other evidence supporting this surmise was introduced at hearing. 

Tr. 87. Thus, Bellfi was not certain that the berm, washers, and bolts were fixed while he was 

waiting for an escort. Tr. 92-93. 

As a result, the court finds that the Secretary did not meet its burden in proving by a 

preponderance of the evidence that Portable took corrective actions while Bellfi was waiting for 

an escort in violation of section 103(a). 

Upon review of the entire record and the Court’s assessment of the credible testimony, it 

concludes that there was miscommunication and some confusion on Portable’s part in reacting to 

Inspector Bellfi when he appeared at the mine to conduct his inspection, but there was no intent 

to delay the inspection. Nor, under the particular circumstances of this case, was the 30 minute 

delay unreasonable, given the unfamiliarity of those at the mine with how to deal with a mine 

inspection and the lack of precision on the Inspector’s part in communicating the immediacy 

associated with his right to inspect. The Mine’s reaction was also tempered by the history of its 

significant experience when MSHA inspectors had arrived in the past. 

36 FMSHRC Page 3258
 Based on the above determinations and facts, the Court finds that Portable did not 

unreasonably delay Bellfi’s inspection or indirectly deny access to its mine on August 16, and 

therefore, did not violate section 103(a). It is further determined that Portable did not engage in 

any advance notice violation. It is important to recognize, however, the Secretary’s valid concern 

that “excusing” a 30 minute delay “would severely impair MSHA’s ability to protect miners.” 

Sec’y Br. at 19. Under a different set of facts, intentionally and unreasonably delaying an MSHA 

inspector for 30 minutes, or possibly, in some circumstances, a delay of less time, could indeed 

weaken MSHA’s ability to protect miners. Accordingly, the Court’s decision here is not meant to 

be broadly interpreted but instead is limited to the specific circumstances of this is case. 

 Wherefore, Citation No. 8587084 is VACATED and this case is hereby DISMISSED. 

/s/ William B. Moran

William B. Moran 

 Administrative Law Judge 

Distribution: 

Donna Pryor, Esq., and Breyana Penn, Esq., Jackson Lewis P.C. 950 17th Street, Suite 260, 

Denver, CO 80202 

Ronald Gottlieb, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer Blvd., Suite 

515, Denver, CO 80204 

36 FMSHRC Page 3259
CERTIFICATE OF SERVICE 

It is hereby certified that the foregoing was served via email and certified mail on December 5, 

2014: 

Donna Pryor, Esq. 

Breyana Penn, Esq. 

Jackson Lewis P.C. 

950 17th Street, Suite 260 

Denver, CO 80202 

Ronald Gottlieb, Esq. 

U.S. Department of Labor 

Office of the Solicitor 

1244 Speer Blvd., Suite 515 

Denver, CO 80204 

Wykesha Hodnett 

36 FMSHRC Page 3260
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

December 8, 2014 

AMENDED DECISION AND ORDER

Appearances: David Hardy, Esq., & Christopher Pence, Esq., Hardy Pence, PLLC, 

Charleston, West Virginia for Petitioner 

Karen Barefield, Esq., Office of the Solicitor, U.S. Department of Labor, 

Arlington, Virginia for Respondent 

Before: Judge McCarthy 

 The Decision and Order issued December 5, 2014, is hereby amended pursuant to 

Commission Rule 69(c), 29 C.F.R. § 2700.69(c) (2014), to correct clerical errors and read as set 

forth below. 

I. Statement of the Case 

This case is before me upon an Application for Award of Fees and Expenses under the Equal 

Access to Justice Act (EAJA). 5 U.S.C. § 504 (2014). Signature Mining Services, LLC, filed its 

Application against the Secretary of Labor’s Mine Safety and Health Administration based upon 

a negotiated settlement that the parties reached in the underlying contest proceeding. Currently 

pending in this case are Cross Motions for Summary Judgment filed on March 11, 2014, and a 

Motion to Supplement the Record filed on May 28, 2014. The undersigned finds no genuine 

issues of material fact that preclude summary disposition of this matter. For the reasons set forth 

herein, the Secretary’s Motion for Summary Judgment is granted, and Signature’s Motion for 

Summary Judgment is denied. 

SIGNATURE MINING SERVICES, LLC, 

Petitioner 

 

 v. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

 EQUAL ACCESS TO JUSTICE 

PROCEEDING 

Docket No. EAJ 2012-0002 

Mine: Coalburg No. 1 

 

36 FMSHRC Page 3261
II. Factual and Procedural Background 

A. The Underlying Contest Proceeding 

On August 25, 2011, adverse roof and rib conditions developed at the Coalburg No. 1 

Mine at the 003 MMU-2 East Panel, a retreat mining section. Order No. 8139507; Signature 

App. at 1-2. Initially, these conditions affected several entries on the right side of the section 

along and inby the last open crosscut. Order No. 8139507. After MSHA inspectors observed 

pillars taking weight on the 2 East Panel, MSHA issued imminent danger Order No. 8139507 

pursuant to Section 107(a) of the Act. Order No. 8139507; Sec’y Answer at 3. This order 

covered the #6 and #8 entries along and inby the last open crosscut. Order No. 8139507. 

Signature and the Secretary both allege that the conditions began to spread from the 

mouth of the 2 East Panel to the Mains. Signature App. at 3; Sec’y Answer at 3. In response, 

Signature began withdrawing miners and equipment from, and dangering off, the affected area. 

Signature also set Heintzman jacks along the roadway at break 15 along the Mains, outby the 

area affected by the adverse roof conditions. Richmond Dep. 30:9-31:10; Canterbury Dep. 

11:21-12:13; Mackowiak Dep. 60:11-14, 65:2-5, 66:14-15; 75:11-19. 

On August 27, 2011, at 1:30 a.m., the Coalburg No. 1 foreman reported that the pillars at 

the mouth of the 2 East Panel were taking weight. Richmond Dep. 18:21-19:8. Randel 

Richmond, Signature’s president, was informed that the ground failure had migrated into the 

Mains. Richmond Dep. 19:6-21:8. Before 10 a.m., Richmond spoke with Terry Price, MSHA’s 

field office supervisor, and John Kinder, a representative of the West Virginia Miner’s Health, 

Safety, and Training (WVMHST), to apprise them about the adverse ground conditions. 

Richmond Dep. 30:20-32:2. Richmond told Price that Signature had stopped production and 

withdrawn all its miners from the affected areas. Richmond Dep. 30:22-31:3. Richmond also 

provided Price with assurances that Signature had taken steps to monitor and correct the 

conditions. Richmond Dep. 31:5-10, 36:14-22. 

Approximately fifteen minutes later, Joe Mackowiak, MSHA assistant district manager, 

called Frank Canterbury, a mine foreman at Signature, to inquire further about the adverse 

conditions. Mackowiak Dep. 57:8-12. Canterbury informed Mackowiak that the ground failure 

had migrated into the Mains and that men were underground setting jacks to prevent further 

migration of the adverse ground conditions. Mackowiak Dep. 73:22-74:20, 97:3-13. Canterbury 

also told Mackowiak that the ventilation controls of an abandoned mine 75 feet below the 

Coalburg No. 1 had been crushed and the water sumps had gone dry. Order No. 8126005; 

Mackowiak Dep. 81:16-82:19. The subsidence led Mackowiak to conclude that the pillar failures 

and ground conditions created regional instability. Mackowiak Dep. 92:14-94:8. 

Pursuant to Section 107(a) of the Act, Mackowiak orally issued imminent danger Order 

No. 8126005 by phone. Mackowiak Dep. 87:12-14. Mackowiak emphasized that the situation 

was so dangerous that everyone ought to be withdrawn, without exception. Mackowiak Dep. 

99:16-19, 103:2-5. Mackowiak then instructed Price to dispatch inspectors to Coalburg 

No. 1 and reduce the Order to writing. Mackowiak Dep. 87:21-88:11. Mackowiak also faxed 

Price instructions to issue the imminent danger order with “[n]o exceptions,” which meant that 

36 FMSHRC Page 3262
no one was allowed to be in the mine site. Mackowiak Dep. 102:8-15; Price Dep. 54:10-20, 

dated November 8, 2011. 

When Price and James Jackson, another MSHA inspector, arrived at Coalburg No. 1, 

they reduced the Order to writing. Price Dep. 56:19-57:4. At that time, 14 miners were 

underground. Price Dep. 60:22-61:6. Although none of these miners were involved in running 

coal, Price and Jackson did not conduct any investigation about why these miners were 

underground. Price Dep. 60:7-15. Price and Jackson did not travel underground to examine the 

adverse conditions. Price Dep. 64:14-65:5. Price instructed Signature that the entire mine site 

was closed and no one was permitted underground without MSHA’s approval. Price Dep. 62:14-

18, 63:4-64:8; see Richmond Dep. 36:15-20, 38:16-39:1. 

 

On August 29, 2011, MSHA inspectors, Signature personnel, and consultants from Alpha 

Engineering traveled underground to observe the adverse conditions and determine whether the 

ground failure had stopped. Richmond Dep. 40:23-41:13. The inspection party determined that 

the 2 East Panel and approximately ten crosscuts inby break 15 were the areas primarily affected 

by the roof and rib conditions. See Appl. For Fees and Other Expenses at 3, dated January 6, 

2012. Mackowiak heard pillars breaking and continued to express concern that the ground failure 

posed a regional threat given the conditions of the underlying mine. Mackowiak Dep. 141:22-

144:17. As a result, the imminent danger Order remained in effect for the entire mine site. Order 

No. 8126005; see Mackowiak Dep. 140:7-21. Thereafter, Signature filed a Notice of Contest to 

Order Nos. 8139507 and 8126005. See Notice of Contest to Orders Nos. 8139705 & 8126005. 

On August 30, 2011, MSHA issued withdrawal Order No. 7257539 pursuant to Section 

103(k) of the Act. Order No. 7257539. In this control Order, MSHA alleged that a “coal and 

floor rock outburst accident” had occurred and all mining activities inby had been disrupted. Id. 

The 103(k) Order covered the entire mine because of hazards presented by crushed ventilation 

controls and instability of mine pillars. Id. MSHA was unsure about the extent of damage and 

the need to conduct an accident investigation. Sec’y Answer at 4. On August 31, 2011, Signature 

filed a Notice of Contest to Order No. 7257539. 

Six days before the scheduled hearing on the contest proceedings, the parties entered into 

settlement negotiations. On December 2, 2011, the Secretary of Labor, MSHA, and Signature 

filed a Joint Motion to Continue based on the terms of a proffered settlement agreement. Jt. Mot. 

to Continue at 3-4. With respect to the Section 107(a) imminent danger Orders, Signature agreed 

to withdraw its Notice of Contest to Order No. 8139507 in exchange for MSHA’s promise to 

vacate Order No. 8126005. See Jt. Mot. to Continue, at 3. Negotiations on section 103(k) Order 

No. 7257539 were ongoing at the time the Joint Motion was filed. Thereafter, MSHA agreed to 

narrow the area of the mine affected by that control Order and to approve Signature’s ventilation 

plan. Jt. Mot. to Continue, Ex. 2. On December 5, 2011, the undersigned granted the parties’ 

Joint Motion to Continue. Order Granting Continuance. 

On December 16, 2011, the undersigned granted Signature’s motion to partially withdraw 

its Notice of Contest to Order No. 8139507. My Order noted that the Secretary had agreed to 

vacate Order No. 8126005 and directed that Order No. 8126005 be addressed in either a 

subsequent settlement motion or hearing. On January 4, 2012, I granted the Secretary’s motion to 

36 FMSHRC Page 3263
dismiss and vacate Order No. 8126005. On January 20, 2012, Signature filed a motion to dismiss 

its Notice of Contest to Order No. 7257539. By Order dated January 26, 2012, the undersigned 

granted Signature’s motion. 

B. The EAJA Proceeding 

On January 9, 2012, Signature filed its Application for Fees and Other Expenses under 

EAJA. On August 30, 2013, the undersigned issued a Decision and Order finding that (1) the 

judicially-sanctioned negotiations that concluded the underlying contest proceeding were 

sufficient to grant Signature prevailing party status under the EAJA and (2) Order No. 8126005 

was overbroad and the Secretary’s decision to enforce it was without merit and could not be 

substantially justified.1 The Decision and Order directed that further proceedings address (1) 

whether Signature’s balance sheet met EAJA’s financial eligibility requirements, (2) whether 

Patriot Coal Company controlled the underlying contest proceedings (thereby precluding 

Signature from recovering fees under the EAJA), and (3) the amount of attorneys’ fees, if any, to 

which Signature was entitled after prevailing on Order No. 8126005. 

The parties engaged in additional discovery after issuance of my August 30, 2013, 

Decision and Order clarifying the issues to be addressed at hearing. In response to a discovery 

request from the Secretary, Signature’s counsel produced a redacted copy of the Contract Mining 

Agreement, which detailed the nature of the contractual relationship between Signature and 

Jarrell’s Branch. Resp’t Ex. 24, Signature’s Response to the Secretary’s Requests for Production 

of Documents. The redactions of putative confidential business information included paragraphs 

17, 18, and 20, which provided, in relevant part, that Jarrell’s Branch would reimburse Signature 

for certain penalty assessments issued by MSHA that did not arise from intentional misconduct 

or gross negligence, and for attorneys’ fees and costs incurred in contesting penalty assessments 

before the Commission. Resp’t Ex. 24, Signature’s Response to the Secretary’s Requests for 

Production of Documents; Resp’t Ex. 21. 

The Secretary subsequently discovered an un-redacted copy of the contract on the Patriot 

bankruptcy information website. The contract had been filed with the bankruptcy court on 

 1

 During a conference call with the parties on November 21, 2013, Signature informed 

the undersigned that a clarification of my August 30, 2013, Decision and Order was warranted 

and Signature conceded that its application for fees was limited to Section 103(k) Order No. 

7257539 and Section 107(a) Order No. 8126005. The Secretary then filed a Motion for 

Modification on November 25, 2013. An Amended Decision and Order was issued on December 

6, 2013, which stated that Signature was only eligible to be awarded fees and costs related to 

Section 107(a) Order No. 8126005. While the Secretary may have lacked substantial justification 

for enforcing 107(a) Order No. 8139507, Signature did not apply for fees related to that order 

within thirty days of the Commission’s final disposition of the underlying proceeding, Docket 

No. WEVA 2011-2299, and thus is ineligible to be awarded fees incurred in its defense of that 

Order. 29 C.F.R. § 2704.206 (2013). 

36 FMSHRC Page 3264
July 31, 2013, in support of Signature’s claim against Jarrell’s Branch.2

 The Secretary 

had previously been unaware that Jarrell’s Branch had fully reimbursed Signature for the fees 

incurred in the underlying contest proceeding and partially reimbursed Signature for the fees 

incurred in the EAJA litigation. When the Secretary notified Signature’s counsel that he had 

found an un-redacted copy of the Contract Mining Agreement, counsel admitted that Signature 

had been reimbursed for attorneys’ fees and costs. Secretary’s Mot. Summ. J. 10, n.6. 

On December 12, 2013, the parties filed a Joint Motion for Decision on Stipulated 

Record. They stipulated to Signature’s net worth and to the amount of attorneys’ fees incurred by 

Signature in its defense of Order Number 8126005 and the litigation of its EAJA application. 

On March 11, 2014, after additional discovery, the parties filed Cross Motions for 

Summary Judgment stipulating to the facts, the record, and the amount of fees Signature incurred 

in the contest proceeding and its EAJA application. The Cross Motions for Summary Judgment 

present arguments on the primary issue of whether the terms of the Contract Mining Agreement 

between Patriot Coal’s subsidiary Jarrell’s Branch and Signature preclude Signature’s recovery 

of fees under the EAJA. 

C. Summary of Stipulated Facts on Cross Motions for Summary Judgment 

Signature Mining Services is a West Virginia limited liability corporation formed in 

2008. Resp’t Ex. 22. Since its formation, Signature has employed less than 500 people and its net 

worth has never exceeded $7,000,000. See Signature’s Application under EAJA. 

Jarrell’s Branch Coal Company is a subsidiary of Patriot Coal Corporation. On August 

29, 2011, Patriot Coal was worth more than $7,000,000. Patriot Coal filed for Chapter 11 

bankruptcy on July 9, 2012.3 

Order No. 8126005 was issued on August 27, 2011. Resp’t Ex. 4. On August 29, 2011, 

Signature’s counsel filed a Notice of Contest for Order Nos. 8126005. Resp’t Ex. 7. The 

litigation of Order No. 8126005 continued through January 4, 2012, when the undersigned issued 

an Order to Dismiss Docket No. WEVA 2011-2300. Resp’t Ex. 19. 

2 See Amended Proof of Claim No. 1394, at Part 9, In re Patriot Coal Corp., et al., No. 

12-51502-659 (Bankr. E.D. Mo. July 31, 2013), available at 

https://cert.gardencitygroup.com/pcx/readPdf/3839_020101.pdf?secondTime=yes&fileType=rmi

&.value=101. 

3

 The parties have stipulated to Jarrell’s Branch’s status as a Patriot Coal subsidiary and 

to Patriot’s net worth as of August 29, 2011. The undersigned takes judicial notice that Patriot 

Coal’s Joint Plan of Reorganization was confirmed by the United States Bankruptcy Court, 

Eastern District of Missouri, Eastern Division on December 18, 2013 and went into effect that 

same day. In re Patriot Coal Corp., et al., No. 12-51502-659 (Bankr. E.D. Mo. Dec. 18, 2013), 

available at http://patriotcaseinformation.com/pdflib/Dkt_No._5169A.pdf. Additional 

information on Patriot Coal’s bankruptcy proceedings is available at patriotcaseinformation.com. 

36 FMSHRC Page 3265
On June 1, 2011, Signature entered into a Contract Mining Agreement with Jarrell’s 

Branch Coal Company governing mining operations at the Coalburg #1 mine. Resp’t Ex. 21. The 

Agreement was negotiated over a period of several weeks, and the amount of Signature’s 

compensation pursuant to its terms was directly related to Jarrell’s Branch’s obligation to 

reimburse Signature for costs incurred in operating the Coalburg No. 1 Mine, including amounts 

for legal fees incurred in defending certain citations and orders issued by MSHA.4

 Signature’s 

Mot. Summ. J. 8, Stipulated Fact No. 11. Had Jarrell’s Branch not agreed to reimburse Signature 

for costs incurred in operating the mine, Signature’s compensation under the contract’s terms 

would have been higher. Signature’s Mot. Summ. J. 8, Stipulated Fact No. 12. The reserves at 

Coalburg No.1 Mine exceeded the term of the Contract Mining Agreement. Had Jarrell’s Branch 

and Signature negotiated an extension or renewal of the contract upon its expiration, the 

historical costs incurred in the mine’s operation would have been an important consideration in 

negotiating Signature’s future compensation. Signature’s Mot. Summ. J. 8, Stipulated Fact 

No. 13. 

Under the Contract Mining Agreement, Signature was responsible for managing the daily 

operations at the mine, including compliance with the Federal Mine Safety and Health Act and 

its regulations. Resp’t Ex. 21, ¶ 8. The agreement obligated Jarrell’s Branch to reimburse 

Signature for its legal fees incurred as a result of matters pending before the Commission, 

excluding matters arising under section 104 of the Mine Act. Resp’t Ex. 21, ¶ 18. The agreement 

also obligated Jarrell’s Branch to pay Signature for reasonable attorneys’ fees after the 

cancellation, expiration, or termination of the agreement if the citation was issued prior to the 

effective termination date. Id.

5

 The maximum hourly rate that Signature can recover in this 

4

 Paragraph 17 of the Contract Mining Agreement states: 

For all assessments, penalties, or fines imposed by federal, state, or local 

agency for any local, state, or federal law or regulation, except those issued for 

safety and environmental violations as set for in Articles 18 and 26 of this 

Agreement, which arise out of the contractors or its Labor Contractor’s operation 

at the Mine, Owner shall reimburse Contractor for the payment of such 

assessments, penalties, or fines; provided that Owner shall not reimburse 

Contractor for assessments, penalties or fines arising from Contractor’s or its 

Labor Contractor’s intentional misconduct or gross negligence. 

Resp’t Ex. 21. Paragraph 18, in relevant part, provides that “Owner agrees to pay Contractor for 

the cost of penalty assessments received by Contractor on citations issued by MSHA . . . for 

Contractor’s or it’s Labor Contractor’s alleged violation of federal or state mandatory health and 

safety standards,” except for violations arising under sections 104(d), 104(b)(2), and 104(c) of 

the Mine Act. See 30 U.S.C §§ 804(d), 804(b)(2), 820(c) (2013). In addition, “Owner shall pay 

Contractor for the reasonable attorneys’ fees and costs incurred by Contractor in contesting 

penalty assessments and/or citations. Owner considers reasonable attorneys’ fees to be those that 

are based on an hourly rate not in excess of $275 per hour.” Id. 

5

 Paragraph 18 of the Contract Mining Agreement states that “Owner shall continue to 

reimburse Contractor for the cost of penalty assessments and reasonable attorneys’ fees incurred 

(continued...) 

36 FMSHRC Page 3266
matter is $275, the contractual reimbursement rate from Jarrell’s Branch. Id.; see also Secretary’s 

Mot. Summ. J. 10, n.6. 

Signature decided when to initiate, settle, and terminate actions before the Federal Mine 

Safety and Health Review Commission. No person at Patriot Coal or Jarrell’s Branch had 

authority to make these decisions. Signature’s Mot. Summ. J. 7, Stipulated Fact No. 9. The 

contest proceedings regarding Order 8126005 were initiated and resolved at the sole discretion of 

Signature. Signature’s Mot. Summ. J. 7, Stipulated Fact No. 10. 

At the time the EAJA action was filed on January 9, 2012, Signature had not been 

reimbursed for time spent in December 2011 defending against Order 8126005. By March 9, 

2012, Jarrell’s Branch had reimbursed Signature for $39,789.59 in fees and expenses incurred in 

connection with the defense of Order No. 8126005. Signature’s Mot. Summ. J. 9, Stipulated Fact 

No. 18; Secretary’s Mot. Summ. J. 3, Stipulated Fact No. 11. Signature incurred $16,734.07 in 

expenses from expert services provided by Alpha Engineering Services, Inc. in connection with 

the defense of Order 8126005. Jarrell’s Branch reimbursed Signature for all amounts Signature 

paid to Alpha Engineering. Signature’s Mot. Summ. J. 9, Stipulated Fact No. 21; Resp’t Ex. 21, 

¶ 17; Resp’t Ex. 23. Signature has not been and will not be reimbursed for $40,214.78 in legal 

fees and expenses incurred in the prosecution of the EAJA action. See Signature’s Mot. 

Supplement R. Ex. 4.6

by Contractor after the cancellation, expiration, or termination of this agreement if the citation 

was issued prior to the effective termination date.” Resp’t Ex. 21. 

6

 The undersigned takes administrative notice of Signature’s bankruptcy claims against 

Patriot. In its Amended Proof of Claim No. 1394, Signature included the following Explanation 

of Proof of Claim: 

At the time of the bankruptcy filing, Patriot assured Signature Mining that 

it would continue to pay the fines and defense costs associated with MSHA 

violations as they arose post-bankruptcy. Signature originally filed two proofs of 

claim representing expenses that arose prior to the time of the bankruptcy filing. 

Signature was operating under the assumption that Patriot would reimburse 

Signature for costs and fees that were continuing to accrue post-bankruptcy. 

Subsequently, Patriot informed Signature that Patriot does not intend to pay the 

fines and defense costs as they arise. 

Amended Proof of Claim No. 1394, at Part 2, In re Patriot Coal Corp., et al., No. 12-51502-659 

(Bankr. E.D. Mo. July 31, 2013), available at 

https://cert.gardencitygroup.com/pcx/readPdf/3839_0201.pdf?secondTime=yes&fileType=rmi&.

value=1. On January 16, 2014, Signature and Patriot entered into a Settlement and Release 

Agreement that resolved Signature’s claims in the amount of $164,687 (Exhibit B) and released 

Patriot from any further liability. See Settlement and Release Agreement, In re Patriot Coal 

Corp., et al., No. 12-51502-659 (Bankr. E.D. Mo. January 16, 2014), available 

at https://cert.gardencitygroup.com/pcx/fs/viewreconPdf?fileName=Signature%20Mining. 

5

(...continued)

36 FMSHRC Page 3267
Signature has been fully reimbursed for legal fees and expenses set forth in the invoices 

dated September 22, October 18, November 16, and December 15, 2011; and January 18, 

February 21, and March 21, 2012. Those invoices include all underlying contest proceeding fees 

and some EAJA fees. Signature was partially reimbursed for the invoice dated April 18, 2012 

relating to EAJA fees. Signature has not and will not be reimbursed for the invoices relating to 

EAJA fees dated May 24, June 22, August 21, October 1 and 22, and November 13, 2012; 

October 1, November 3, and December 5, 2013; and January 2, February 3, and April 1, 2014. 

Secretary’s Mot. Summ. J. 5, Stipulated Fact No. 21; Signature’s Mot. Summ. J. 9, Stipulated 

Fact No. 19; Signature’s Mot. Supplement R. Ex. 4. 

The parties stipulated in their cross-motions for summary judgment that Signature could 

supplement the record to reflect additional fees incurred in the preparation of the motion for 

summary judgment. On May 28, 2014, Signature’s counsel filed a Motion to Supplement the 

Record with invoices detailing those fees. Should the undersigned find that Signature is entitled 

to all legal fees and expenses incurred in the defense of Order No. 8126005 and the subsequent 

EAJA application, the total amount is $80,004.37, as of May 28, 2014. Should the undersigned 

find that Signature is entitled only to those fees for which it has not been reimbursed, the total is 

$40,214.78, as of May 28, 2014. 

III. Principles of Law

A. Standard of Review for Cross-Motions for Summary Judgment 

Under Commission Rule 67(b), a motion for summary decision shall be granted only if 

the entire record, including the pleadings, depositions, answers to interrogatories, admissions, 

and affidavits shows (1) that there is no genuine issue of material fact; and (2) that the moving 

party is entitled to summary decision as a matter of law. 29 C.F.R. § 2700.67(b) (2014). The 

burden is on the moving party to establish its right to summary decision. Wimsatt v. Green Coal 

Company, Inc., 16 FMSHRC 487 (Feb. 1994) (ALJ). In other words, the party seeking summary 

judgment bears the initial responsibility of informing the court of the basis for its motion, and 

identifying those portions of the pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any, which demonstrate the absence of a 

genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Moreover, 

all reasonable inferences from the underlying facts must be construed in the light most favorable 

to the non-moving party. See e.g., Reeves v. Sanderson Plumbing Pods., Inc., 530 U.S. 133, 135 

(2000). In the case of cross-motions for summary judgment, the Commission has recognized the 

well-established principle that “the court must rule on each party’s motion on an individual and 

separate basis, determining, for each side, whether a judgment may be entered in accordance 

with a Rule 56 [of the Federal Rules of Civil Procedure] standard.” Hanson Aggregates New 

York, Inc., 29 FMSHRC 4, 10 (Jan. 2007); see also Charles Allen Wright et al., 10A Federal

Practice & Procedure § 2720 (3d ed. 1998); Scottsdale Ins. Co. v. Cutz, L.L.C., 543 F. Supp. 2d 

1310 (S.D. Fla. 2007).7 

7

 Although the Commission’s Procedural Rules do not directly address cross-motions for 

summary judgment, Rule 1(b) provides that “on any procedural questions not regulated by the 

[Mine] Act, these Procedural Rules, or the Administrative Procedure Act, the Commission and 

(continued...) 

36 FMSHRC Page 3268
Summary judgment, however, is an extraordinary procedure and must be entered with 

care, especially in the case of cross-motions. There are three reasons why courts must carefully 

evaluate cross-motions for summary judgment separately and individually. 

First, the question of whether genuine issues of material fact still exist is a question of 

law reserved exclusively to the judge, regardless of the parties’ opinions. Wright et al., supra, § 

2720. The parties’ filing of cross-motions for summary judgment do not “conclusively 

establish[] the universe of facts that [are] . . . material,” and the judge must make the 

determination that no material fact issues remain unresolved. Hanson Aggregates New York, Inc., 

29 FMSHRC 4, 10 (Jan. 2007).8 The Third Circuit has explained that 

[c]ross-motions are no more than a claim by each side that it alone is entitled to 

summary judgment, and the making of such inherently contradictory claims does 

not constitute an agreement that if one is rejected the other is necessarily justified 

or that the losing party waives judicial consideration and determination whether 

genuine issues of material fact exist. If any such issue exists it must be disposed 

of by plenary trial and not on summary judgment. 

Raines v. Cascade Indus., 402 F.2d 241, 245 (3d Cir. 1968). 

Second, a party’s claim that there are no genuine issues of material fact for the purposes 

of summary judgment does not prevent that same party from making the claim that there are

genuine issues of material fact that preclude judgment from being entered against it. In other 

words, “the contention of one party that there are no issues of material fact preventing entry of 

judgment in its favor does not bar that party from asserting that there are issues of fact sufficient 

to prevent the entry of judgment as a matter of law against it.” Schwabenbauer v. Bd. of 

Educ., 667 F.2d 305, 313 (2d Cir. 1981); see also Zook v. Brown, 748 F.2d 1161 (7th Cir. 1984); 

Nafco Oil & Gas, Inc. v. Appleman, 380 F.2d 323 (10th Cir. 1967); Cram v. Sun Ins. Office, 375 

F.2d 670 (4th Cir. 1967). 

Finally, “the mere fact that a [party] has failed to meet his burden of proof on his motion 

for summary judgment does not entitle the [other party] to judgment on its motion.” Rothenberg 

v. Chemical Bank New York Trust Co., 400 F. Supp. 1299, 1302 (S.D.N.Y. 1975). Rule 56 places

the burden on the moving party to establish that there is no genuine issue of material fact and that 

it is entitled to judgment as a matter of law; when both parties file competing motions for 

7 (...continued) 

its Judges shall be guided so far as practicable by the Federal Rules of Civil Procedure and the 

Federal Rules of Appellate Procedure.” 29 C.F.R. § 2700.1(b) (2014). Motions for summary 

judgment are governed by Rule 56 of the Federal Rules of Civil Procedure, and the jurisprudence 

regarding standards of review for cross-motions for summary judgments is well-developed. See 

e.g., Wright et al., supra, §§ 2720, 2725 (3d ed. 1998).

8

 Summary judgment may be particularly appropriate, however, where the parties have 

stipulated to the facts. See e.g., Trevino v. Yamaha Motor Corp., 882 F.2d 182 (5th Cir. 1989); 

Estate of Reddert v. United States, 925 F. Supp. 261 (D.C.N.J 1996). 

36 FMSHRC Page 3269
summary judgment, each party must separately and individually satisfy that burden. See Fair 

Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d. 1132, 1136 

(9th Cir. 2001). 

Summary judgment, therefore, may only be entered when there is no genuine issue of 

material fact, and when the party in whose favor it is entered is entitled to summary decision as a 

matter of law. Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981); see also Poller v. 

Columbia Broad. Sys., Inc., 368 U.S. 464, 467 (1962) (holding that summary judgment should be 

entered only when the pleadings, depositions, affidavits, and admissions show no genuine issue 

as to any material fact and that the moving party is entitled to a judgment as a matter of law). 

B. The Equal Access to Justice Act 

1. EAJA Generally and Commission EAJA Rules

The EAJA provides for the award of attorneys’ fees and other expenses to a prevailing 

party against the United States or an agency thereof, unless the position of the government was 

substantially justified or that special circumstances make an award unjust. 5 U.S.C. § 504(a)(1) 

(2014). The Supreme Court has recognized that eligibility for EAJA fees requires (1) that the 

claimant be a “prevailing party,” (2) that the Government’s position was not “substantially 

justified,” (3) that no special circumstances make an award unjust, and (4) that the fee 

application must be submitted to the court within 30 days and be supported by an itemized 

statement. Commissioner, Immigration & Naturalization Serv. v. Jean, 496 U.S. 154, 158 

(1990). 

Pursuant to the directive of 5 U.S.C. § 504(c)(1), the Commission has promulgated its 

own rules and procedures for EAJA applications. In order to be eligible for EAJA fees, a 

corporate entity such a Signature -- as opposed to an individual or the sole owner of a 

corporation -- cannot have a net worth in excess of $7 million nor employ more than 500 

employees. 29 C.F.R. § 2704.104 (2014). See, e.g., Bill Simola, 34 FMSHRC 539, 550–51 (Mar. 

2012) (treating LLCs as corporations under the Mine Act). Commission EAJA Implementation 

Rule 100 defines when eligible parties can recover: 

An eligible party may receive an award when it prevails over the U.S. Department 

of Labor, Mine Safety and Health Administration (“MSHA”), unless the Secretary 

of Labor’s position in the proceeding was substantially justified or special 

circumstances make an award unjust. 

29 C.F.R § 2704.100 (2014); see also 5 U.S.C. § 504(a)(4) (2014). 

Under Commission rules, 

[a] prevailing applicant may receive an award of fees and expenses incurred in 

connection with a proceeding, or in a significant and discrete substantive portion 

of the proceeding, unless the position of the Secretary was substantially justified. 

The position of the Secretary includes, in addition to the position taken by the 

36 FMSHRC Page 3270
Secretary in the adversary adjudication, the action or failure to act by the 

Secretary upon which the adversary adjudication is based. The burden of proof 

that an award should not be made to a prevailing applicant because the 

Secretary’s position was substantially justified is on the Secretary, who may avoid 

an award by showing that his position was reasonable in law and fact. An award 

will be reduced or denied if the applicant has unduly or unreasonably protracted 

the underlying proceeding or if special circumstances make the award unjust. 

29 C.F.R. § 2704.105 (2014). Contest proceedings, such as the one underlying Signature’s 

application, are expressly included in the types of Commission proceedings in which eligible 

parties may apply for EAJA fees. See 29 C.F.R. §2704.103 (2014). 

Although the Commission’s EAJA Implementation rules normally cap fees at a rate of 

$125 an hour,9

 the Commission may exercise its discretion to award fees at a higher rate to 

account for increases in cost of living or the limited availability of attorneys qualified to handle 

Commission proceedings. 29 C.F.R. § 2704.107 (2014). Eligible parties may apply for 

“reasonable expenses,” and awards may also include attorneys’ fees and expert witness fees 

regardless of whether “the services were made available without charge or at a reduced rate to 

the applicant.” 29 C.F.R. § 2704.106(a) (2014). The court may also award costs for engineering 

studies and reports “to the extent that the charge for the service does not exceed the prevailing 

rate for similar services, and the study . . . was necessary for the preparation of the applicant’s 

case in the underlying proceeding.” 29 C.F.R. § 2704.106 (2014). The amount of the EAJA 

award is thus left largely to the discretion of the administrative adjudicator. 

When determining the reasonableness of fees to award, the following five factors must be 

considered: 

1) If the attorney, agent or witness is in private practice, his or her customary fee

for similar services, or, if an employee of the applicant, the fully allocated cost

of the services;

2) the prevailing rate for similar services in the community in which the attorney,

agent, or witness ordinarily performs services;

3) the time actually spent in the representation of the applicant;

4) the time reasonably spent in light of the difficult or complexity of the issues in

the underlying proceedings; and

5) such other factors as may bear on the value of the services provided.

29 C.F.R. § 2704.106(c) (2014). The EAJA also vests the adjudicator with the discretion to 

reduce or deny awards “to the extent that the party during the course of the proceedings engaged 

9 See 29 C.F.R. § 2704.106(a) (2014); see also 28 U.S.C. § 2412(d)(2)(A). 

36 FMSHRC Page 3271
in conduct which unduly and unreasonably protracted the final resolution of the matter in 

controversy.” 5 U.S.C. § 504(a)(3) (2014); see also 28 U.S.C. § 2412(a)(1)(C) (2014). 

2. EAJA’s Purposes and Legislative History

The EAJA was enacted shortly after a period of rapid regulatory growth to address 

Congress’ concerns that small businesses lacked the resources to litigate against the federal 

government. H.R. Rep. 96-1418, at 9–10 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4988–

89. From a policy perspective, Congress was concerned that the greater resources and expertise

of the federal government might coerce small businesses into regulatory compliance simply 

because they lacked the resources to contest citations, thereby creating precedent on the basis of 

uncontested orders rather than after the “thoughtful consideration and presentation of opposing 

views.” H.R. Rep. 96-1418, at 10. Therefore, the primary purpose of the EAJA is to eliminate 

the financial disincentive to challenge unreasonable governmental actions for eligible parties. 

H.R. Rep. No. 99-120, at 4 (1985), reprinted in 1985 U.S.C.C.A.N. 132; Jean, 496 U.S. at 163 

citing Sullivan v. Hudson, 490 U.S. 877, 883 (1989)). 

The EAJA’s legislative history shows that Congress specifically intended the statute to 

serve dual functions: 

1) [to] diminish the deterrent effect of seeking review of, or defending against,

governmental action by providing in specified situations an award of attorney 

fees, expert witness fees, and other costs against the United States; and 

2) [to] insure the applicability of the common law and statutory exceptions to

the “American rule” respecting the award of attorneys’ fees in actions by or 

against the United States.10

The Equal Access to Justice Act, Pub. L. No. 96-481, 94 Stat. 2321 (1980) (codified as amended 

at 5 U.S.C. § 504; 28 U.S.C. § 2412 (2014)). Thus, the EAJA reduces the resource disparity 

between the federal government and small business litigants, and creates an incentive for 

agencies to police their enforcement and litigation activities by imposing the risk of a fee award 

against them. See generally United States v. 329.73 Acres of Land in Grenada & Yalobusha 

Counties, 704 F.2d 800, 801–03 (5th Cir. 1983) (discussing congressional intent of the EAJA). 

Accordingly, the “[g]overnment’s interest in protecting the federal fisc is subordinate to the 

specific statutory goals of encouraging private parties to vindicate their rights and curbing 

excessive regulation and the unreasonable exercise of government authority.” Jean, 496 U.S. at 

163 (1990) (citing H.R. Rep. No. 1418, at 12; S. Rep. No. 96-253, at 7 (1979)). 

10 The American Rule generally provides that each party pays its own attorneys’ fees, but 

allows an award of fees against a party who has acted under common law in bad faith or to 

preserve a common fund, or when a statute, such as EAJA, provides that fees may be awarded. 

See generally Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 (1975) (discussing 

application of the American rule doctrine in federal courts). 

36 FMSHRC Page 3272
IV. Positions of the Parties

Signature and the Secretary have stipulated that Signature, at the time the underlying 

contest proceeding was initiated, was worth less than $7 million and had less than 500 

employees, and is therefore eligible to recover fees and expenses under the EAJA. The 

undersigned’s August 30, 2013 Decision and Order, together with the Amended Decision and 

Order issued December 6, 2013, found that Signature was a prevailing party for the purposes of 

the EAJA in the contest proceedings related to Order No. 8126005, and that the Secretary’s 

defense of that order was not substantially justified. If the undersigned finds that Signature has 

incurred fees within the meaning of the statute, Signature is therefore eligible for a fee award. 

Further, the parties have stipulated that should the undersigned find that Signature is entitled to 

all legal fees and expenses incurred in the defense of Order No. 8126005 and its subsequent 

EAJA application, the total amount is $80,004.37. In the alternative, should the undersigned find 

that Signature is entitled only to those fees and expenses for which it has not been reimbursed 

(the fees and expenses related to the EAJA application incurred after the partial reimbursement 

in April 2012), Signature is entitled to $40,214.78. 

Given the purposes of EAJA, the issue of whether Signature is entitled to EAJA fees in 

this matter turns on whether Signature incurred fees under the EAJA given the terms of the 

contract mining agreement between Signature and Jarrell’s Branch, a subsidiary of Patriot Coal. 

The contract between Jarrell’s Branch and Signature obligated Jarrell’s Branch to reimburse 

Signature for legal fees and costs incurred in defending certain citations and orders before the 

Commission. Resp’t Ex. 21, ¶ 18; see supra note 3. Signature argues that its contract mining

agreement with Jarrell’s Branch does not preclude collection of EAJA fees, despite 

reimbursement from Jarrell’s Branch for all attorneys’ fees, costs, and expenses, including those 

incurred by Alpha Engineering, associated with the underlying contest proceeding, and for part 

of the fees arising from pursuit of its EAJA application. The Secretary argues that the contract 

mining agreement precludes Signature from incurring fees for the purposes of EAJA. 

Signature advances three legal arguments in support of a summary award of EAJA fees. 

First, Signature emphasizes that it was responsible for managing the daily operations at the mine 

and had sole discretion to initiate, settle, or terminate actions before the Commission. Therefore, 

Signature argues that it is the real party-in-interest instead of a stand-in litigant applying for 

EAJA fees on behalf of Patriot Coal, an ineligible party. Second, Signature argues that nothing in 

the EAJA suggests a purpose to prevent contractual reimbursement arrangements like that extant 

between Signature and Jarrell’s Branch. Therefore, Signature argues for a fee award regardless 

of whether it was responsible for paying the fees or whether the fees already have been paid. 

Third, Signature argues that failure to award fees would circumvent EAJA’s purpose of deterring 

unreasonable government action. 

The Secretary advances three arguments in support of a summary denial of EAJA fees. 

First, the Secretary argues that the potential litigation costs had no deterrent effect on Signature’s 

decision to defend against Order No. 8126005 because Signature knew in advance that 

reasonable attorneys’ fees and costs incurred before the Commission would be reimbursed by 

Jarrell’s Branch. Moreover, Signature has not actually “incurred” any fees because most of its 

attorneys’ fees and all of its expert costs have already been reimbursed by Jarrell’s Branch. 

36 FMSHRC Page 3273
Second, because the contest costs and fees have already been paid, any fee award would 

constitute a windfall for Signature, contrary to the EAJA’s intent. Third, the Secretary argues 

that any EAJA award would impermissibly impose a fine on MSHA and force taxpayers to 

finance Signature’s EAJA litigation. 

V. Analysis and Discussion 

A. Circuit Court Disagreement on the Meaning of “Incur” under EAJA 

The EAJA statute specifically provides in pertinent part that “[a]n agency that conducts 

an adversary adjudication shall award, to a prevailing party other than the United States, fees and 

other expenses incurred by that party in connection with that proceeding, unless the adjudicative 

officer of the agency finds that the position of the agency was substantially justified or that 

special circumstances make an award unjust.” 5 U.S.C. § 504(a)(1). Neither the text of the 

EAJA nor its legislative history provides a definition of “incur.” Sec. & Exch. Comm’n v. 

Comserv Corp., 908 F.2d 1407, 1413 (8th Cir. 1990). This issue is one of first impression for the 

Commission.11 Accordingly, the undersigned has canvassed federal circuit Courts of Appeals 

decisions for guidance, including the Fourth Circuit, which may have appellate jurisdiction over 

the Commission’s final decision because Signature is located in Raleigh County in Beckley, 

West Virginia.12 

The federal Circuit Courts of Appeals are divided on the issue, particularly when the 

EAJA award includes fees that are incurred by the party’s liability insurer, or fees that are paid or 

advanced by a third party (here Jarrell’s Branch) with a legal obligation to indemnify or 

reimburse the prevailing party (here Signature). See United States v. Thouvenot, Wade & 

Moerschen, Inc., 596 F.3d 378 (7th Cir. 2010) (dicta finding that award of attorneys' fees under 

the EAJA can include fees incurred by the prevailing party's liability insurer, because the party 

had contracted with the insurance company to pay premiums in exchange for the insurance 

company assumption of defense costs), accord Ed A. Wilson, Inc. v. Gen. Servs. Admin., 126 

F.3d 1406 (Fed. Cir. 1997) (contractor Wilson incurred attorney fees and expenses even though 

11 Jeroski v. FMSHRC, 697 F.3d 651 (7th Cir. 2012), comes close, but that case turned on 

the “prevailing party” issue. Id. at 655. The Seventh Circuit affirmed the final order of the 

Commission judge dismissing the contest proceeding, without prejudice, because the MSHAtargeted janitorial contractor, whose attorney fees were paid by a cement plant, was not a 

prevailing party under EAJA, but suggested in dicta that contractor had not incurred fees where it 

would not have been deterred from contesting MSHA action where the cement company 

financed the litigation and the contractor would receive a windfall from an EAJA award. Id. at 

655-56. 

12 See 30 U.S.C. § 816(a) (2013) (“Any person adversely affected or aggrieved by an 

order of the Commission . . . may obtain review . . . in any United States court of appeals for the 

circuit in which the violation is alleged to have occurred or in the United States Court of Appeals 

for the District of Columbia Circuit.”). The D.C. Circuit has not addressed the particular issue of 

whether prevailing parties indemnified by third parties “incur” fees under the EAJA. 

36 FMSHRC Page 3274
Wilson’s insurer Bituminous was responsible for paying monthly billings to law firm where 

Wilson received interest-free loan from Bituminous to pay a denied repair claim against 

government contracting officer and assigned any potential recovery against government to 

Bituminous); Securities & Exch. Comm’n v. Zahareas, 374 F.3d 624 (8th Cir. 2004) (broker 

incurred legal fees under EAJA, even though broker’s former company had initially agreed to 

pay fees, where company went bankrupt, leaving broker obligated to pay fees); see also

Morrison v. Comm’r of Internal Revenue, 565 F.3d 658 (9th Cir. 2009) (taxpayer may incur 

attorney fees under 26 U.S.C. § 7430(a) even if those fees are paid initially by a third party 

where there is either a contingent or non-contingent obligation to repay the fees); Phillips v. Gen. 

Servs. Ass’n, 924 F.2d 1577 (Fed. Cir. 1991) (EAJA attorney fees incurred by government 

employee challenging discipline where contingency fee arrangement required that fee award be 

paid over to legal representative). Compare United States v. Paisley, 957 F.2d 1161 (4th Cir. 

1992) (EAJA fees denied where employer paid attorneys' fees on behalf of its former employees 

pursuant to statutory obligation to indemnify them) with Securities & Exch. Comm’n v. Comserv 

Corp., 908 F.2d 1407 (8th Cir. 1990) (corporate officer not eligible for EAJA award where 

company's insurance policy reimbursed company for its indemnification of officer and officer 

had no legal obligation to pay fees); United States v. 122 Acres of Land, 856 F.2d 56 (8th Cir. 

1988) (because property owner had no obligation under contingent fee agreement to pay his 

attorney anything, he had not incurred attorneys’ fees within meaning of Uniform Relocation 

Assistance and Real Property Acquisition Policies Act, another fee-shifting statute); OwnerOperator Indep. Drivers Ass’n v. Fed. Motor Carrier Safety Admin., 675 F.3d 1036 (7th Cir. 

2012) (commercial truck drivers not entitled to award of attorney fees under EAJA where 

drivers’ association was the only party responsible for payment under fee arrangement and 

therefore the burden of fees would not have deterred litigation challenging government’s action); 

Jeroski v. FMSHRC, 697 F.3d 651 (7th Cir. 2012) ) (proprietorship performing janitorial services 

for cement plant who financed litigation of withdrawal order against MSHA was not prevailing 

party, and suggesting in dicta that janitorial contractor had not incurred fees where it would not 

have been deterred from contesting MSHA action where cement company financed the litigation 

and contractor would receive windfall from EAJA award).13 

Having carefully reviewed the foregoing circuit precedent in apparent conflict, the 

undersigned resolves the issue of whether Signature has “incurred” fees under its Contract 

Mining Agreement with Jarrell’s Branch within the meaning of EAJA by focusing on whether 

13 The circuits have generally recognized an exception to the requirement that a legal 

liability for attorneys' fees must be incurred for an EAJA award where the prevailing party is 

represented by counsel appearing pro bono or by a legal services organization. Cornella v. 

Schweiker, 728 F.2d 978, 987 (8th Cir. 1984). For example in Cornella, the Eight Circuit relied 

in part on legislative history suggesting that awards to pro bono organizations were contemplated 

by Congress. Id. (quoting H.R. Rep. No. 1418, 96th Cong., 2d Sess. 15, reprinted in 1980 

U.S.C.C.A.N. 4994). The court held that where a pro bono attorney “forgives” a fee to a client 

unable to afford legal expenses, that client is eligible for an EAJA award on the basis of that fee 

arrangement. Other circuits have reached a similar result. See, e.g., American Ass’n of Retired 

Persons v. E.E.O.C., 873 F.2d 402, 406 (D.C. Cir. 1989); Watford v. Heckler, 765 F.2d 1562, 

1567 n. 6 (11th Cir. 1985). Similarly, an EAJA award has been found appropriate where the 

prevailing party is an attorney appearing pro se. Jones v. Lujan, 883 F.2d 1031 (D.C. Cir. 1989). 

36 FMSHRC Page 3275
the award of fees and costs to Signature would give effect to EAJA’s specific purpose and 

Congress’ intent to eliminate the financial disincentive to challenge unreasonable government 

actions. See Jean, 496 U.S. at 164 (citing Sullivan v. Hudson, 490 U.S. 877, 883 (1989)); OwnerOperator Indep. Drivers Ass’n, 675 F.3d at 1040 (citing Krecioch v. United States, 316 F.3d 

684, 686 (7th Cir. 2003)); Sullivan v. Hudson, 490 U.S. 877, 883–84 (1989)); see also Comserv, 

908 F.2d at 1414–15 (“EAJA awards should be available where the burden of attorneys’ fees 

would have deterred the litigation challenging the government’s actions, but not where no such 

deterrence exists.”); Paisley, 957 F.2d at 1164 (recognizing that whether an award serves 

EAJA’s purpose in avoiding deterrence is the “critical concern underlying the EAJA 

precondition that a fee claimant shall have “incurred” the expense”). The undersigned agrees 

with that practical approach because it is consistent with the purpose of the statute and its 

legislative history. 

Congress prefaced the EAJA with this statement of its findings and purposes: 

(a) The Congress finds that certain individuals, partnerships, corporations, and 

labor and other organizations may be deterred from seeking review of, or 

defending against, unreasonable governmental action because of the expense 

involved in securing the vindication of their rights in civil actions and in 

administrative proceedings. 

(b) The Congress further finds that because of the greater resources and expertise 

of the United States the standard for an award of fees against the United States 

should be different from the standard governing an award against a private 

litigant, in certain situations. 

(c) It is the purpose of this title- 

(1) to diminish the deterrent effect of seeking review of, or defending against, 

governmental action by providing in specified situations an award of attorney 

fees, expert witness fees, and other costs against the United States; and 

(2) to insure the applicability in actions by or against the United States of the 

common law and statutory exceptions to the “American rule” respecting the 

award of attorney fees. 

Congressional Findings and Purposes, note following 5 U.S.C. § 504. Furthermore, the 

Committee Reports of both the House and Senate reflect the concerns of providing access for 

eligible individuals, partnerships, corporations, and labor or other organizations, for whom cost 

may be a deterrent to vindicating their rights, and improving government policies by helping to 

assure that administrative decisions reflect informed deliberation. H.R. Rep. No. 96-1418, at 10 

(1980); S. Rep. No. 96-253, at 7 (1979). 

In this case, I conclude that the primary purpose of EAJA to eliminate the financial 

disincentive to challenge unreasonable government action would not be served by awarding fees 

and expenses to Signature. Denial of Signature’s attorney fees and expenses would not remove 

any financial disincentive for Signature to challenge MSHA’s overbroad imminent danger Order 

because Signature was contractually promised and received full reimbursement for contesting 

36 FMSHRC Page 3276
MSHA’s action. In this regard, I find the Fourth Circuit’s reasoning and holding in Paisley, 

relied on by the Secretary, to be persuasive here. 

To hold that a prevailing party with an unconditional legal right to 

indemnification of its attorney fees by a manifestly solvent third party might 

nevertheless qualify for an EAJA award because indemnification had not yet 

occurred is unacceptable for several reasons. . . . [S]uch a holding would not in 

fact serve a principal purpose of the EAJA: to avoid the deterring effect which 

liability for attorney fees might have on parties' willingness and ability to litigate 

meritorious civil claims or defenses against the Government. The EAJA provides 

for fee-shifting precisely to avoid this result. Consequently, in any situation in 

which the eligibility of a particular prevailing party for an EAJA award is in issue, 

it is appropriate to inquire whether that party would, as a practical matter, have 

been deterred from litigating had it been known that a fee-shifting award was not 

available upon a successful conclusion. If that question is asked here, it is obvious 

that appellees, all but one of whom were funded by an advance which by contract 

they need not refund if they prevailed in litigation, would not have been deterred 

had the EAJA not then existed. This is the critical concern underlying the EAJA 

precondition that a fee claimant shall have “incurred” the expense.

Accordingly, we hold that, to effectuate the purposes of the EAJA, a claimant 

with a legally enforceable right to full indemnification of attorney fees from a 

solvent third party cannot be deemed to have incurred that expense for purposes 

of the EAJA, hence is not eligible for an award of fees under that Act. 

957 F.2d at 1164 (internal citations omitted).14 

The prevailing parties in Paisley were denied fees because they were indemnified per 

statute by a third party with no obligation of repayment. Signature attempts to blunt Paisley by 

reliance on the Federal Circuit’s decision in Wilson, where the Federal Circuit found that 

denying EAJA fees to a prevailing small business that had been indemnified by its liability 

insurer “would thwart the Act’s purpose of deterring unreasonable governmental action.” Wilson, 

126 F.3d at 1410. Signature relies heavily on Wilson to support its argument that it incurred fees 

for EAJA purposes. 

14 The issue in Paisley was whether the prevailing parties, former Boeing employees, had 

“incurred” fees for the purposes of the EAJA when a Delaware state statute required Boeing to 

indemnify them if they successfully defended against the underlying government suit. Since 

Boeing paid the former employees an advance to cover the fees, the prevailing parties argued 

that the indemnification had actually been a “mere” possibility, because Boeing could have, in 

theory, demanded repayment from the employees in the event that they lost the suit. The Fourth 

Circuit, however, rejected that argument as inconsistent with the purpose of EAJA and found the 

prevailing parties to be ineligible for fees. 957 F.2d at 1164. 

36 FMSHRC Page 3277
The Wilson court emphasized that it had previously awarded EAJA fees to prevailing 

parties who had no obligation to pay any fees to their attorneys, such as those represented pro 

bono or by union counsel.15 The Federal Circuit was unable to discern any material distinction 

between those cases and Wilson’s case since in each instance the litigant paid a third party in 

advance for the benefit of legal representation as a component of union dues or insurance 

premiums, and incurred no additional obligation of payment to counsel. Id. at 1409–10. The 

Wilson court reasoned that denying the EAJA application “would neither remove the financial 

disincentives of litigating against the government nor deter the government’s unreasonable 

denial of minor claims filed by its small business contracting partners.” Id. at 1410. Rather, the 

court reasoned as follows: 

Denying a small business, which in its keen acumen has obtained insurance to 

insulate itself from liability for accidents during contract performance, and thus 

from potential insolvency, an award of fees for the attorney services that it 

procured as part of its policy would thwart the Act's purpose of deterring 

unreasonable governmental action. In fact, it would act as an incentive to deny 

meritorious claims, thereby requiring the small business to litigate. If the small 

business has insurance, the government could deny the contractor's claim and 

litigate any appeal of the denial without any pecuniary risk. Even if the contractor 

were to win the appeal, there would be no award of attorney fees. The government 

could act unreasonably not only in its initial denial of the small business' claim 

but also during the litigation of the appeal, confident in the knowledge that it will 

be exposed to no attorney fee award. 

Id. Whereas the Fourth Circuit in Paisley focused on the EAJA’s primary purpose of eliminating 

financial disincentives for eligible parties who would defend against unjustified government 

action, the Federal Circuit in Wilson emphasized Congressional intent to deter unreasonable 

action by encouraging agencies to police their enforcement and litigation activities. 

B. This Case is Factually More Analogous To, and Legally More Consonant With, 

Paisley than Wilson; Accordingly, Signature Did Not Incur Fees Within the 

Meaning of the EAJA 

1. Pre-Bankruptcy Fees

 This case is more factually akin to and legally consonant with Paisley than Wilson before 

Patriot filed for bankruptcy. In Paisley, the employer indemnified its former employees pursuant 

to a legal obligation imposed by state statute. Similarly, in this case, Jarrell’s Branch reimbursed 

Signature for legal fees pursuant to contractual obligation. Both Signature and the prevailing 

parties in Paisley had a legally enforceable right to full indemnification or reimbursement of 

attorney fees from a solvent third party and therefore would not be deterred by liability for 

15 See Devine v. Nat’l Treasury Employees Union, 805 F.2d 384 (Fed. Cir. 1986); 

Goodrich v. Dept. of the Navy, 733 F.2d 1578 (Fed. Cir. 1984) (construing 5 U.S.C. § 

7701(g)(1)); see also Nat’l Treasury Employees Union v. Dept. of Treasury, 656 F.2d 848 (D.C. 

Cir. 1981) (construing 5 U.S.C. § 552a(g)(3)(B) (1976)). 

36 FMSHRC Page 3278
attorney fees and expenses from challenging the government’s action had the EAJA not then 

existed. This is the critical concern underlying the EAJA precondition that the fee applicant 

“incurred” the expense. Paisley, 957 F.2d at 1164. 

The prevailing parties in Paisley were former employees who never incurred or paid 

insurance premiums. Similarly, Signature never incurred attorney’s fees and expenses in the 

underlying MSHA contest proceeding since Jarrell’s Branch reimbursed Signature. 

By contrast, the prevailing party in Wilson actually paid for its own indemnification in 

the form of monthly insurance premiums. Wilson specifically involved a fixed-price contract 

between Wilson and the General Services Administration for the remodeling of a federal 

building. During the remodel, a sprinkler line broke and caused damage to the building’s interior. 

Wilson denied responsibility, but complied with the GSA officer’s instruction to repair the 

damage. The GSA denied Wilson’s subsequent claim to cover the additional cost of the repair. 

Wilson then submitted a claim to its third-party liability insurer, and received an “interest-free 

loan” that partially covered the cost of the repairs. The loan was “repayable only in the event and 

to the extent of any net recovery [Wilson] may make from any [party] causing or liable for the 

loss or damage to the property.” Wilson, 126 F.3d at 1407. In exchange, Wilson assigned to its 

insurance carrier any claim against the government, any potential recovery, and the authority to 

appeal GSA’s denial of its claim to the GSA Board of Contract Appeals. Although the appeal 

was filed in Wilson’s name, the insurance carrier had exclusive direction and control of the 

appeal and covered all the expenses related to the proceeding. Id. 

The Wilson court equated the monthly premiums with prepaying attorneys’ fees in 

advance, and reasoned that Wilson had effectively “incurred” fees under the EAJA. Id. at 1411, 

n.4. In other words, “the insurance premiums are the fee that the insured pays for the insurance 

company’s defense of his case. . . . [T]he cost of defense, to the extent borne by the insurance 

company, is a cost that the insured has paid for, just as he would have paid a lawyer for his 

defense had he had no insurance.” Thouvenot, 596 F.3d at 383 (discussing the reasoning in 

Wilson). In that context, denying Wilson EAJA fees would almost certainly increase insurance 

premiums, thereby “reintroduc[ing] the cost of litigation as a factor in the small business’ 

decision whether to contest governmental action it deems unreasonable.” Wilson, 126 F.3d at 

1411. As a consequence, “the small business would have to decide whether it is worth the 

increased premiums, which it will incur regardless of whether it prevails, to challenge the 

government.” Id. 

Thus, courts have found that an award of attorney fees under the EAJA could properly 

include fees incurred by the prevailing party's liability insurer because liability insurance is 

essentially a contingent loan. The insured pays premiums in exchange for the promise that the 

insurance company will bear the cost of the insured’s defense (subject to a deductible) if the 

insured is sued on a claim that the policy covers, and to minimize the premiums, the insured 

agrees to repay that cost to the extent it is covered by an award of attorney fees under EAJA. 

Thouvenot, 596 F.2d at 383. 

 Signature contends that the relationship between Jarrell’s Branch and Signature is 

analogous to that between the insurance carrier and the insured in Wilson. Signature argues that 

36 FMSHRC Page 3279
its compensation and other benefits under the Contract Mining Agreement were directly related 

to Jarrell’s Branch’s obligation to reimburse Signature for operating costs. Signature’s Mot. 

Summ. J. 13; Stipulated Fact No. 11. Moreover, Signature argues that it assumed the risk that 

Jarrell’s Branch would not be able to reimburse the fees and costs it owed to Signature. Signature 

further argues that this reduced compensation and the assumed risk for failure to reimburse 

constitute forms of consideration paid in exchange for Jarrell’s Branch’s agreement to pay the 

mine’s operating costs. Signature’s Mot. Summ. J. 13–14.16 This consideration, Signature 

contends, is analogous to the insurance premiums paid in Wilson and does not bar Signature from 

recovering fees under the EAJA. Signature’s Mot. Summ. J. 14. 

Signature’s arguments are not persuasive. Lower compensation and assumption of risk 

are not explicitly mentioned as forms of consideration in the Contract Mining Agreement. See 

Resp’t Ex. 21, at 1; Signature’s Mot. Summ. J. 8, Stipulated Facts Nos. 11-12. Likewise, 

Signature’s argument that the historical costs of operating the mine would be an important factor 

in negotiating Signature’s future compensation should there have been an extension or renewal 

of the Agreement is not certain and is not explicitly mentioned in the Agreement. See Signature’s 

Mot. Summ. J. 8, Stipulated Fact No. 13. The Federal Circuit in Wilson specifically noted that 

denying Wilson fees would almost certainly increase Wilson’s monthly insurance premiums and 

thereby reintroduce the cost of litigation as a factor in Wilson’s decision to contest the 

government action. Wilson, 126 F.3d at 1411. By contrast, Signature’s argument that the costs of 

defending against Order No. 8126005 would “necessarily result in a reduction of [its] 

compensation” in the event that Signature renegotiates the contract with Jarrell’s Branch is 

speculative, at best. The undersigned is unconvinced that such speculative reduction in future 

compensation is akin to the more certain increase in insurance premiums that concerned the 

Federal Circuit in Wilson. Signature’s Mot. Summ. J. 17. 

On the other hand, the Contract Mining Agreement does explicitly reference safety bonus 

payments payable to Signature. Signature was entitled to a $2,000 per month safety bonus if 

Signature and its contractors had zero lost time accidents during a calendar month. In addition, 

Signature was eligible for an additional monthly $2,000 safety bonus if its MSHA violations per 

inspection day were between 1.0 and 1.4 each calendar month. If Signature’s MSHA violations 

16 The Contract Mining Agreement states that the parties are contracting “for and in 

consideration of undertakings and agreements set forth, and other good and valuable 

consideration not fully set forth herein, the sufficiency of which is acknowledged.” Resp’t 

Ex. 21, at 1. Under the Agreement, Signature was generally responsible for mining and 

transporting the coal to the preparation facility, maintaining a comprehensive general liability 

insurance policy, and obtaining the required state and federal operator identification numbers. 

Resp’t Ex. 21, at ¶ 1, ¶ 16, ¶ 18. In exchange, Jarrell’s Branch retained title to the coal mined by 

Signature, covered all operating costs of the mine (including certain penalty assessments and 

attorneys’ fees and costs incurred in Commission proceedings), and granted Signature the use of 

the equipment and premises to mine the coal. Resp’t Ex. 21, at ¶ 4, ¶ 7, ¶ 18, ¶ 3. Based on these 

contractual provisions, Signature argues that it “clearly paid consideration in the form of reduced 

compensation and the risk of bankruptcy in exchange for Jarrell’s Branch’s agreement to pay the 

costs of operating the mine.” Signature’s Mot. Summ. J. 14. 

36 FMSHRC Page 3280
per inspection day were less than 1.0, the safety bonus increased to $3,000. Resp’t Ex. 21, ¶ 

20(c). In my view, these bonuses appear to negate Signature’s argument that it agreed to lower 

compensation in exchange for Jarrell’s Branch’s obligation to cover its operating costs. 

Furthermore, the risk that Jarrell’s Branch might fail to fulfill the terms of its contract due to 

bankruptcy is inherent in any contract, and such an assumption of insolvency risk is not a 

particular form of consideration under the Contract Mining Agreement with Jarrell’s Branch. In 

short, Signature’s arguments regarding contractual exchanges of consideration are speculative, 

illusory and much less persuasive than the bargained-for insurance exchange in Wilson. 

More importantly, even were the undersigned persuaded that Signature’s lower 

compensation and assumption of risk were particular forms of consideration, Signature’s reliance 

on Wilson’s insurance contract analogy for an award of EAJA fees is still misplaced. The 

relationship between Signature and Jarrell’s Branch is not analogous to the relationship between 

Wilson and its insurance carrier. The Wilson court specifically recognized that “the insurance 

premiums are the fee that the insured pays for the insurance company’s defense of his 

case. . . . [T]he cost of defense, to the extent borne by the insurance company, is a cost that the 

insured has paid for, just as he would have paid a lawyer for his defense had he had no 

insurance.” Thouvenot, 596 F.3d at 383 (discussing the insurance premiums at issue in Wilson). 

The petitioner in Wilson received a reimbursement designated as an interest-free loan from its 

third-party insurance carrier to cover the costs of its initial claim against the government. In 

consideration of that loan, Wilson assigned its right to pursue an EAJA action and any 

subsequent award to its insurer. Wilson, 126 F.3d at 1407. Signature’s Mot. Summ. J. 9, 

Stipulated Fact No. 13. Unlike Wilson, there is no right of subrogation here under which 

Signature assigned its right to pursue an EAJA action to Jarrell’s Branch, thereby allowing 

Jarrell’s Branch to pursue third party MSHA for attorney’s fees and costs that Jarrell’s Branch 

has already paid Signature. Also unlike Wilson, Signature retained the responsibility for 

controlling the underlying contest litigation at all times. Otherwise, Jarrell’s Branch would be 

found to be an EAJA-ineligible stand-in litigant. Accordingly, I find Wilson inapposite. 

Rather, the Fourth Circuit’s rationale in Paisley is more persuasive on these facts. Paisley

precludes an award of fees to parties with a legally enforceable right to full indemnification from 

solvent third parties because such awards do not advance the primary purpose of the EAJA to 

diminish the deterrent effect of defending against governmental action. Paisley, 957 F.2d at 

1164. Because Signature no longer has any outstanding attorneys’ fees associated with the 

underlying contest proceeding, any such fees awarded would not further the EAJA’s purpose of 

diminishing the deterrent effect of defending against governmental action. Since Signature was 

fully reimbursed by Jarrell’s Branch for fees incurred in challenging the contest proceeding, 

Signature was not deterred from defending against MSHA’s prosecution of the overbroad 

imminent danger order. Rather, awarding fees for the contest proceeding for which Signature 

already has been reimbursed by Jarrell’s Branch would constitute a windfall for Signature. See 

Jeroski, 697 F.3d at 656. Accordingly, on the instant record, the undersigned concludes that an 

award of EAJA fees is contrary to the primary purpose of the EAJA to eliminate the financial 

disincentive to challenge unreasonable governmental actions for eligible parties. H.R. Rep. No. 

99-120, at 4; Jean, 496 U.S. at 163 (citing Sullivan, 490 U.S. at 883). 

36 FMSHRC Page 3281
The undersigned also concludes that the secondary or dual purpose of the EAJA is not 

materially advanced by an award of fees here. That purpose is to ensure the applicability of the 

common law and statutory exceptions to the “American rule,” which generally provides that each 

party pays its own attorneys’ fees, but allows an award of fees against a party who has acted 

under common law in bad faith or to preserve a common fund, or when a statute, such as EAJA, 

provides that fees may be awarded. See supra text accompanying note 10; see also H.R. Rep. 

99-120, at 5. Although EAJA provides fees when, as here, the government’s position is not 

substantially justified, I conclude that any EAJA statutory exception to the American rule is 

subservient to the primary purpose of EAJA, which as explained above, has not been advanced 

here where Signature has not “incurred” fees under the EAJA statute because it has not been 

deterred from challenging MSHA given reimbursement from Jarrell’s Branch. Accordingly, I 

find any statutory exception to the American rule inapplicable here. Nor has the common fund 

exception under common law been advanced here because Signature’s contest proceeding did 

not have the effect of preserving or recovering a common fund for the benefit or equitable trust 

of others. Finally, the common law bad-faith exception to the American rule is inapposite. 

Although the federal government (MSHA) may be subject to punitive awards for bad faith, see 

e.g., Am. Hosp. Ass’n v. Sullivan, 938 F.2d 216, 219 (D.C. Cir. 1991), such bad faith is a narrow

basis for recovery and may be “imposed only in exceptional cases and for dominating reasons of 

justice.” Havrum v. United States, 204 F.3d 815, 819 (8th Cir. 2000) (citing Brown v. Sullivan, 

916 F.2d 492, 495 (9th Cir. 1990)). The EAJA’s “not substantially justified” standard is less 

stringent than the bad faith required for punitive damages. Here, the Secretary’s insistence on an 

overbroad imminent danger order during pre-litigation through settlement does not rise to the 

level of “vexatious, wanton, or oppressive” conduct necessary for a finding of bad faith.

Zahareas, 374 F.3d at 630 (citing Brown, 916 F.2d at 495). 

Finally, the undersigned is not persuaded that awarding EAJA fees would deter 

unreasonable government action. In the circumstances of this case, I find more compelling the 

Secretary’s argument that allowing Signature to recover fees for which it has already been 

reimbursed by Jarrell’s Branch would be an impermissible windfall for Signature for pursuing an 

overly broad imminent danger order to voluntary settlement prior to any litigation. Jeroski, 697 

F.3d at 656. The stated Congressional intent behind the EAJA is ameliorative, not punitive. 

EAJA was enacted to remove the financial disincentives that small businesses face when 

litigating against the government and to concurrently “impose the risk of a fee award that must 

be paid by the agency as an incentive to police their enforcement and litigation activities so that 

only well-founded cases would be litigated.” See 329.73 Acres of Land in Grenada & Yalobusha 

Counties, 704 F.2d at 802. Those purposes are not advanced here. 

Accordingly, I find that Signature is not eligible to recover EAJA fees related to the 

underlying contest proceeding and is therefore not entitled to the full $80,004.37 requested in its 

EAJA application. The Fourth Circuit standard in Paisley, which I find most instructive here, 

does not permit an award of fees to Signature because Signature received full reimbursement for 

the contest proceeding from Jarrell’s Branch and any additional award would not advance the 

primary purpose of the EAJA to diminish the deterrent effect of defending against MSHA’s 

action. See Paisley, 957 F.2d at 1164. When initiating its underlying contest proceeding, 

Signature knew that Jarrell’s Branch had a contractual obligation to reimburse Signature for any 

costs it might incur, except for intentional misconduct or gross negligence attributable to 

36 FMSHRC Page 3282
Signature or its agents. See Resp’t Ex. 21, ¶ 18. Therefore, since no intentional misconduct or 

gross negligence has been alleged by MSHA, Signature suffered no deterrent effect from the 

costs of litigation, which might have dissuaded Signature from defending against the breadth of 

imminent danger Order No. 8126005 to voluntary settlement short of actual litigation. 

2. Post-Bankruptcy Fees

The Fourth Circuit’s holding in Paisley referred explicitly to a legally-enforceable right 

to indemnification from solvent third-parties. Paisley, 957 F.2d at 1164. It is arguable that 

Paisley does not apply after the third-party indemnifier becomes insolvent. Accordingly, after 

Patriot’s July 2012 bankruptcy filing, the Eighth Circuit’s decision in Securities & Exchange 

Commission v. Zahareas, 374 F.3d 624 (8th Cir. 2004), is instructive because it addresses the 

issue of reimbursement of EAJA fees post-bankruptcy. 

Zahareas involved a prevailing party whose employer agreed to pay his attorneys’ fees in 

the underlying litigation. Prior to doing so, however, the corporation filed for bankruptcy. The 

Eighth Circuit found that since the obligation to pay the attorneys’ fees passed to the prevailing 

party upon the corporation’s dissolution, the prevailing party had incurred the attorneys’ fees for 

the purposes of the EAJA. Zahareas, 374 F.3d at 631. Signature argues that like the respondent 

in Zahareas, it has incurred fees in spite of Jarrell’s Branch’s contractual obligation to reimburse 

it for fees. Signature’s Mot. Summ. J. 17. 

I disagree. A key factor in Zahareas was that the employer’s bankruptcy prevented 

fulfillment of its obligation to pay respondent’s attorney fees, and respondent then became 

responsible for payment. Zahareas, 374 F.3d at 631. That is clearly not the case here. Prior to 

Patriot’s bankruptcy, Jarrell’s Branch reimbursed Signature for all the fees and expenses incurred 

in the contest proceeding regarding Order No. 8126005 and part of the fees incurred in the EAJA 

application. See supra, note 6. Thus, Patriot’s bankruptcy had no effect on Jarrell’s Branch’s 

fulfillment of its contractual obligation to reimburse Signature for fees related to the underlying 

contest proceeding and the pre-bankruptcy EAJA fees.17 Regarding the outstanding $40,214.78 

related to Signature’s EAJA action after Patriot’s July 9, 2012 bankruptcy, Signature and Patriot 

entered into a Settlement and Release Agreement that resolved Signature’s allowed claims in the 

amount of $164,687 (Exhibit B) and released Patriot from any further liability.18 

Furthermore, the undersigned finds that Signature is not entitled to reimbursement for 

post-bankruptcy fees concerning pursuit of the EAJA litigation because Signature was not 

17 Signature filed its EAJA application on January 9, 2012, and Patriot filed for 

bankruptcy on July 19, 2012. As previously noted, Jarrell’s Branch reimbursed Signature for all 

contest proceeding fees and costs and part of its EAJA litigation costs, prior to Patriot’s 

bankruptcy filing. 

18 See Settlement and Release Agreement, In re Patriot Coal Corp., et al., No. 12-51502-

659 (Bankr. E.D. Mo. January 16, 2014), available at 

https://cert.gardencitygroup.com/pcx/fs/viewreconPdf?fileName=Signature%20Mining. 

36 FMSHRC Page 3283
entitled to reimbursement for EAJA fees for the underlying contest proceeding. That is, but for 

the contest proceeding for which EAJA fees have been denied, additional fees for pursuing the 

EAJA litigation would not have been incurred. In short, a party cannot obtain EAJA fees for 

pursuing an EAJA application when it is not entitled to EAJA fees for the underlying action on 

the merits. 

A. Alternatively, Special Circumstances Warrant Denial of EAJA Fees After Patriot’s 

Bankruptcy 

Alternatively, the undersigned finds that even if un-reimbursed fees for pursuing the 

EAJA litigation were incurred by Signature within the meaning of the statute, special 

circumstances make an EAJA award unjust. As noted, EAJA provides for the award of attorneys’ 

fees and other expenses to a prevailing party against the United States or an agency thereof, 

unless the position of the government was substantially justified or that special circumstances 

make an award unjust. 5 U.S.C. § 504(a)(1) (emphasis added); see also 29 C.F.R § 2704.100. 

The undersigned finds in the alternative that special circumstances make an award of any unreimbursed EAJA fees incurred by Signature after Patriot’s bankruptcy unjust. 

During the additional discovery conducted after my August 30, 2014 Decision and Order, 

Signature’s counsel produced a redacted copy of the Contract Mining Agreement between 

Signature and Jarrell’s Branch. The redacted portions included Jarrell’s Branch’s obligation to 

reimburse Signature for certain fees and costs incurred in Commission proceedings. The 

Secretary subsequently found an un-redacted copy of the Agreement on the Patriot Coal 

bankruptcy website, which had been filed on July 31, 2013, in support of Signature’s bankruptcy 

claims against Jarrell’s Branch.19 Prior to finding the un-redacted copy, the Secretary had been 

unaware of Jarrell’s Branch’s reimbursement obligation. After the Secretary notified Signature’s 

counsel of his discovery, Signature’s counsel admitted that Signature had been partially 

reimbursed for attorneys’ fees and costs. Secretary’s Mot. Summ. J. 10, n.6. 

Signature argues that counsel proceeded in good faith by redacting confidential business 

information from the contract. Signature further argues that Paragraph 34 of the Contract Mining 

Agreement requires prior consent of the parties or a court order to disclose confidential material, 

and that Signature would have been subject to a breach of contract claim had it produced the unredacted content without a court order compelling production.20 Signature also argues that the 

19 See Amended Proof of Claim No. 1394, supra notes 2 and 6. Filings in bankruptcy 

proceedings are public records open for examination. See 11 U.S.C. § 107(a) (2013). The 

Contract Mining Agreement became a public record on July 31, 2013 when Signature filed it in 

support of its bankruptcy claim. See Amended Proof of Claim No. 1394, supra note 2. 

20 Paragraph 34 states that 

Owner and Contractor agree with each other that both shall 

treat . . . information relating to the other party or Owner’s and Contractor’s 

business operations as confidential and shall not divulge, transmit, or otherwise 

disclose any such information received without first obtaining prior written 

(continued...) 

36 FMSHRC Page 3284
headings of the redacted paragraphs 17, 18, and 20 were left intact to allow the Secretary to 

evaluate the nature of the redacted material and file a motion to compel if he so chose. 

Signature’s Resp. to Secretary’s Mot. Summ. J. 4. 

I find Signature’s arguments unconvincing. As noted, the un-redacted Contract Mining 

Agreement became a public record on July 31, 2013 when Signature filed it in support of its 

bankruptcy claim. Cf., Foster-Miller, Inc., v. Babcock & Wilcox Canada, 210 F.3d 1, 10 (1st Cir. 

2000) (jury instructions providing that “[i]nformation ... readily known or knowable to the 

interest of the public cannot ... be made confidential simply by slapping it with a restrictive 

label”). In these circumstances, I find Signature’s confidentiality arguments disingenuous and 

waived by public revelation. 

Further, even assuming no waiver of Signature’s confidentiality claim by public 

disclosure, the undersigned is not persuaded that the headings of the redacted paragraphs were 

sufficient to allow the Secretary a fair opportunity to evaluate the nature or potential relevancy of 

the redacted materials. For example, un-redacted paragraph 16 is titled “Indemnification,” 

redacted paragraph 17 is titled “Fines or Penalties,” redacted paragraph 18 is titled “MSHA and 

WVOMHST Identification Numbers Number: MSHA and WVOMHST Assessments,” and 

redacted paragraph 20 is titled “Compensation.” Despite un-redacted paragraph 16’s title of 

“Indemnification,” it is redacted paragraph 17 that requires Jarrell’s Branch to reimburse 

Signature for the penalties and assessments at issue, and it is redacted paragraph 18 that requires 

Jarrell’s Branch to reimburse Signature for reasonable attorneys’ fees and costs incurred in the 

contest proceeding. Since no reimbursement obligations regarding MSHA penalties and 

attorneys’ fees were referenced in the paragraph headed “Indemnification,” the Secretary’s 

review of un-redacted paragraph 16 and the titles of redacted paragraphs 17 and 18 could 

reasonably have led the Secretary to believe that no such obligations existed. Redacted 

paragraph 20, titled “Compensation,” contained the terms under which Signature was entitled to 

bonus payments from Jarrell’s Branch for Signature’s safe operation of the mine. Resp’t Ex. 21, 

¶ 20. In these circumstances, I conclude that the Secretary had justifiable grounds for failing to 

file a motion to compel discovery under Commission Procedural Rule 59.21

consent of the other party unless such information is required by any 

governmental agency or court of law pursuant to due process of law. 

Resp’t Ex. 21. 

21 Commission Procedural Rule 59 governs discovery disputes: 

Upon the failure of any person, including a party, to respond to a 

discovery request or upon an objection to such a request, the party seeking 

discovery may file a motion with the Judge requesting an order compelling 

discovery. If any person, including a party, fails to comply with an order 

compelling discovery, the Judge may make such orders with regard to the 

failure as are just and appropriate, including deeming as established the 

matters sought to be discovered or dismissing the proceeding in favor of 

20

(...continued)

(continued...) 

36 FMSHRC Page 3285
In short, the redactions of paragraphs 17, 18, and 20 contained contractual obligations 

between Signature and Jarrell’s Branch that were central to the Secretary’s case against 

Signature’s application for EAJA fees. Signature should have realized that these contractual 

obligations were responsive to the Secretary’s discovery request and relevant to the remaining 

issues as defined in my August 30, 2013, Decision and Order, as amended on December 6, 2013. 

Rather than redacting allegedly confidential but relevant facts for fear of breaching the terms of 

the Agreement, the more appropriate course for Signature would have been to work with the 

Secretary toward a mutually agreeable accommodation that would protect the confidentiality of 

the purportedly sensitive information, after disclosure. See Fed. R. Civ. Proc. 26(c)(1)(G); cf., 

Pennsylvania Power Co., 301 NLRB 1104, 1105-06 (citing Minnesota Mining & Mfg., Co., 261 

NLRB 27 (1982), enfd. 711 F.2d 348 (D.C. Cir. 1983)). If Signature’s counsel and the Secretary 

had been unable to reach such an accommodation, Signature could have filed a motion for a 

protective order, a motion for in camera review, or a motion to file the allegedly confidential 

information under seal.22 Rather, Signature chose to hide the ball. 

In these circumstances, the undersigned finds in the alternative that Signature’s failure to 

disclose the nature of its contractual reimbursement agreement with Jarrell’s Branch during 

discovery constitutes special circumstances that make an EAJA award for unreimbursed fees and 

costs after Patriot’s bankruptcy unjust. See 5 U.S.C. § 504(a)(1). 

VI. Conclusion and Order

Having reviewed the record, cross motions, and supporting briefs, the undersigned finds 

this matter appropriate for summary decision. The undersigned finds as a matter of law that there 

are no material facts that preclude summary judgment from being entered against Signature. 

Having evaluated the arguments presented by each party and having applied the relevant law, the 

undersigned finds that the Secretary has met his burden of proof and is entitled to summary 

disposition denying any award of EAJA fees. 

the party seeking discovery. For good cause shown the Judge may excuse 

an objecting party from complying with the request. 

29 C.F.R. §2700.59 (2013) (emphasis added). 

22 Signature’s counsel inadvertently disclosed Signature’s balance sheet, which contains 

confidential business information, as Exhibit 5 attached to Signature’s Application for Fees and 

Costs under the EAJA. The balance sheet thus became part of the public record in this 

proceeding. Signature’s counsel moved to seal Exhibit 5, and the undersigned granted that 

motion. Signature’s counsel is therefore well aware of this tribunal’s ability and willingness to 

protect from public disclosure alleged confidential, albeit relevant documents. See Signature’s 

Mot. Seal. 

21 (...continued)

36 FMSHRC Page 3286
WHEREFORE, 

Pursuant to the stipulations agreed to by Signature and the Secretary in their Cross 

Motions for Summary Judgment, Signature’s Motion to Supplement the Record is GRANTED. 

For the reasons set forth above, Signature’s Motion for Summary Judgment is DENIED. 

The Secretary’s Motion for Summary Judgment is GRANTED, and it is ORDERED that each 

party bear their own costs. 

/s/ Thomas P. McCarthy

Thomas P. McCarthy 

Administrative Law Judge 

Distribution: 

Karen Barefield, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

22nd Floor West, Arlington, VA 22209-2247 

David Hardy, Esq., & Christopher Pence, Esq., Hardy Pence, PLLC, 500 Lee Street East, Suite 

701, Charleston, WV 25329 

/ccc 

36 FMSHRC Page 3287
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

 OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

December 22, 2014 

 

DECISION AND ORDER

Appearances: R. Lance Witcher, Esq., Ogletree, Deakins, Nash, Smoak, & Stewart, St. 

Louis, Missouri, for Applicant 

 Courtney Przybylski, Esq., U.S. Department of Labor, Office of the 

Solicitor, Denver, Colorado, for Respondent 

Before: Judge McCarthy 

I. Statement of the Case 

 Litigation is a crapshoot. The parties relinquish control, and when the dust settles, 

reasonable minds can differ about the legal import of the facts established, and the cogency of 

the legal arguments advanced. Thorough investigation, preparation of witnesses, and legal 

research is often an effective antidote, but not here. Both sides dug in during settlement efforts 

and were caught off guard by independent analysis and research by the judge, or his clerk for that 

matter. 

This case is before me upon an Application for Award of Fees and Expenses filed by 

Magruder Limestone against the Secretary of Labor’s Mine Safety and Health Administration 

under the Equal Access to Justice Act (EAJA). 5 U.S.C. § 504 (2014). The final decision in the 

underlying proceeding approved partial settlement of several citations, and after hearing, ordered 

that Citation No. 6575266 be modified from a section 104(d)(1) unwarrantable failure with high 

negligence to a section 104(a) citation with moderate negligence, that the specially assessed 

penalty of $52,500 be reduced to $16,509, and that section 104(d)(1) unwarrantable failure Order 

No. 6575267 be vacated based on circuit court precedent. See Magruder Limestone Co., Inc., 35 

FMSHRC 1385 (May 2013)(ALJ). 

MAGRUDER LIMESTONE CO., INC., 

Applicant 

 

 v. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

 EQUAL ACCESS TO JUSTICE 

PROCEEDING 

Docket No. EAJ 2013-01 

Mine: Portable Plant #1 

Mine ID: 23-00077 

 

36 FMSHRC Page 3288
Applicant argues that it prevailed in significant and discrete portions of the underlying 

consolidated civil penalty proceeding. It did. Applicant further argues that the Secretary’s 

position was not substantially justified. I disagree. For the reasons set forth below, despite 

reclassification of the 104(d)(1) Citation with lower negligence and a substantially reduced 

penalty, and vacatur of the 104(d)(1) Order, I find that an EAJA award is not appropriate here 

because the Secretary’s position was substantially justified with regard to Citation No. 6575266 

and Order No. 6575267, and special circumstances make an award of fees unjust with regard to 

the vacatur of Order No. 6575267. 

II. The Procedural Distraction – Alleged Improper Service 

On June 20, 2013, Magruder mailed its Application to the Commission, with certificate 

of service indicating same date email transmission to the Secretary’s trial counsel. On June 20, 

2013, Applicant also emailed the undersigned and the Secretary’s trial counsel and advised of the 

EAJA filing. The Commission docketed the matter on June 27, 2013, but under Commission 

Rules 301 and 7, service was effective with the Commission on the date of mailing, i.e., June 20, 

2013, and service was not effective on the Secretary until email receipt. 29 U.S.C. §2700.7(c)(2). 

The Secretary filed his Objection to the Application on August 13, 2013. He argued that 

the Application was improperly served on June 20, 2013 via email because the Secretary’s 

former trial counsel left the office on April 12, 2013, and his email account was deactivated 

shortly thereafter. In support, the Secretary proffers an August 7, 2013 email from the system 

administrator indicating that at least as of that date, an email sent to the Secretary’s former trial 

counsel did not reach its recipient, and that the email account no longer exists. Sec’y Obj. 2, n.1 

and Ex. A. Alternatively, the Secretary argues that it had no notice of the existence of the 

Application until the Commission docket office notified it on August 5, 2013 of the existence of 

an EAJA filing on June 27, 2013. Accordingly, the Secretary argues that its Objection filed on 

August 13, 2013 should be treated as a timely answer. 

Applicant replies that the Secretary provided no notification that his former trial counsel 

had left the Department of Labor. Nor was any withdrawal or substitution of counsel ever filed. 

In fact, the undersigned’s May 21, 2013 Decision and Order listed the Secretary’s former counsel 

as attorney of record, since the Commission also never received any contrary notice from the 

Secretary. Applicant alleges that it did not become aware that the Secretary’s trial counsel had 

left the agency until August 13, 2013, when it received a copy of the Secretary’s Opposition. 

Applicant has no objection to the timing of the Secretary’s Opposition, which I treat as its 

Answer. 

Given my disposition on the merits,1

 I need not decide whether Signature’s EAJA 

application was timely served because the Secretary’s email account had not been deactivated on 

 1

 The determination of the merits of the EAJA application “will be made on the basis of 

the record made during the proceeding for which fees and expenses are sought,” except where 

either party requests or the judge orders further proceedings. See Commission Rule § 2704.306. 

Neither party requested additional proceedings nor sought to supplement the administrative 

record. 

36 FMSHRC Page 3289
June 20, 2013, such that service was effective upon receipt. Assuming arguendo that Signature’s 

EAJA Application was timely served on the Secretary, I find that an EAJA award is unwarranted 

because the Secretary’s litigation position was substantially justified with regard to Citation No. 

6575266 and Order No. 6575267, and special circumstances make an award of fees unjust with 

regard to the vacatur of Order No. 6575267. 

III. Substantial Justification 

A. General Principles 

EAJA entitles a prevailing party to receive fees and other expenses incurred in an 

adversary adjudication, unless the position of the agency was substantially justified. 5 U.S.C. § 

504(a)(1). The government agency bears the burden of demonstrating that its position in an 

adversary adjudication was substantially justified so as to preclude an award of attorney's fees 

and expenses to the prevailing party. Loumiet v. Office of Comptroller of Currency, 650 F.3d 

796, 799 (D.C. Cir. 2011). The agency must prove that both its pre-litigation and litigation 

positions were substantially justified. Iowa Exp. Distribution, Inc., v. NLRB, 739 F.2d 1305, 

1309-10 (8th Cir. 1984). "Substantially justified" does not mean justified to a high degree, but 

rather justified in substance or in the main - - that is, justified to a degree that could satisfy a 

reasonable person. Pierce v. Underwood, 487 U.S. 552, 565 (1988). A position may be justified 

even though incorrect, and it may be substantially (i.e., for the most part) justified if a reasonable 

person could think it correct, that is, if it has a reasonable basis in law and fact. Id. To establish 

substantial justification, an agency must show a reasonable basis in truth for the facts alleged, a 

reasonable basis in law for the theory advanced, and a reasonable connection between the facts 

alleged and the legal theory propounded. See Iowa Exp. Distribution, 739 F.2d at 1308 (quoting 

United States v. 2,116 Boxes of Boned Beef, 726 f.2d 1481, 1487 (10th Cir. 1984). 

The "position of the agency" is to be measured against the underlying proceeding as a 

whole, not by reference to “separate parts of the litigation, such as discovery requests, fees, or 

appeals.” Kuhns v. Board of Governors of Federal Reserve System, 930 F.2d 39 (D.C. Cir. 1991) 

(quoting Commissioner, I.N.S. v. Jean, 496 U.S. 154, 159 (1990). That is, whether or not the 

position of the agency was substantially justified is determined on the basis of the administrative 

record as a whole in the adversary adjudication for which fees and other expenses are sought. 

Alphin v. National Transp. Safety Bd., 839 F.2d 817, 822 (D.C.Cir. 1988); see also 5 U.S.C. § 

504(a)(1). Partial awards, however, are contemplated within the EAJA's statutory scheme. 

Therefore, if some, but not all, of the agency’s allegations are substantially justified, an eligible 

prevailing party should be compensated for challenging those allegations that are not 

substantially justified. In determining whether a partial award of attorney's fees is appropriate, 

the EAJA demands that each allegation made by the agency be evaluated at each step of the 

proceedings when new or additional evidence indicates that an allegation lacks substance or is 

erroneous. Id. 

B. Citation No. 6575266 

In the underlying civil penalty proceeding, undisputed facts established that a rock jam 

occurred during an MSHA inspection and that a stipulated rank-and-file plant operator, Harold 

36 FMSHRC Page 3290
Nichelson, was observed by MSHA inspector, Lawrence Sherrill, standing on an inclined 

conveyor belt, 10 feet off the ground, using a six-foot breaker bar to clear the jam. Nichelson did 

not utilize fall protection (Citation No. 6575266) or follow lock out/tag out protocol (Order No. 

6575267). These alleged violations occurred shortly after the inspector observed plant manager, 

Tim Stewart, speak to Nichelson about the rock jam near a loud generator. 35 FMSHRC at 

1385. 

 Citation No. 6575266 alleged that Applicant Magruder unwarrantably failed to comply 

with the fall protection standard at 30 C.F.R. § 56.15005. 30 C.F.R. § 56.15005 is a mandatory 

standard which provides that “[s]afety belts and lines shall be worn when persons work where 

there is a danger of falling . . . .” The citation ascribed high negligence to Magruder for a 

violative practice that was “highly likely” to result in an injury that could reasonably be expected 

to be fatal. The parties stipulated that the actions alleged constituted a violation of the standard 

and that the citation was correctly characterized as significant and substantial (S&S). The 

Secretary proposed a specially assessed penalty of $52,500. As noted, after hearing, I modified 

the 104(d)(1) unwarrantable failure citation with high negligence to a section 104(a) citation with 

moderate negligence, and assessed a penalty of $16,509. 

 Having again carefully reviewed the matter, I find that the Secretary’s litigation position 

with respect to Citation No. 6575266 had a reasonable basis in fact and law and was substantially 

justified to a degree that could satisfy a reasonable person. Pierce, 487 U.S. at 565. The 

Secretary reasonably argued that Stewart’s actions in the face of a hazardous condition did not 

meet the heightened standard of care for supervisors, and the fall hazard scenario presented a 

sudden, high degree of danger, which was not necessarily suitable for a traditional, factordependent unwarrantable failure analysis under Commission precedent such as Lopke Quarries, 

Inc., 23 FMSHRC 705, 711 (July 2001). P. Br. at 13-14, citing Midwest Material Co., 19 

FMSHRC 30 (Jan. 1997). That is, where hazardous conditions involve "a high degree of 

danger," a supervisor is held to a "heightened standard of care." Lafarge Construction Materials, 

20 FMSHRC 1140, 1145-48 (Oct. 1988). The Secretary argued that supervisor Stewart’s failure 

to meet that heightened standard of care supported an unwarrantable failure determination. P. Br. 

at 13-14. 

The Secretary specifically argued that an unwarrantable designation was justified because 

Stewart acted with a “serious lack of reasonable care” when he shouted hurried and confusing 

instructions to plant operator Nichelson in front of a loud diesel generator, where such 

instructions were easily misunderstood and conveyed a sense of urgency to take immediate 

action without regard for safety protocol. In fact, the Secretary relied on alleged inconsistencies 

within Stewart’s own testimony establishing that Stewart instructed Nichelson to act (either shut 

down the conveyor belt or lock out the power source), and not act (wait for him before doing 

anything). The Secretary argued that Stewart’s confusing and unclear instructions were easily 

misunderstood when delivered in front of the 95 decibels of noise being emitted by the diesel 

generator. Additionally, the Secretary emphasized that Nichelson was standing around with 

other miners waiting for Stewart to return from a discussion with a vendor, when Nichelson told 

Stewart that the feeder was jammed. Then, only after instruction from Stewart, did Nichelson 

attempt to clear the jam. P. Br. at 14-15. 

36 FMSHRC Page 3291
Nichelson testified that he ignored the safety requirements because he desired to resume 

production as soon as possible. 35 FMSHRC at 1392, citing Tr. 357. Stewart admitted that 

before promotion to management, he had ignored the fall protection and lock out/tag out 

requirements when in a hurry. 35 FMSHRC at 1390, citing Tr. 296-98, 306. The Secretary 

argued that Nichelson took cues from a hurried Stewart, assumed production was more important 

than safety, and risked fatal injury in a hasty attempt to comply with Stewart’s instructions. P. 

Br. at 15. 

 The Secretary also emphasized that Stewart had opportunities to take precautionary 

measures and had no reason to rely on any assumption that Nichelson would wait to handle the 

rock jam. Stewart handled approximately 10 rock jams when employed as a rank and file miner, 

and first did so when his supervisor was too busy. P. Br. at 15-16. Also, Stewart knew that 

Nichelson had handled at least two rock jams prior to July 14, 2010, one of which Stewart 

witnessed. P. Br. at 16, see also Tr. 273. Since Stewart conceded that he thought Nichelson was 

going to lock out power to the conveyor, the Secretary argues that Stewart should have assumed 

that Nichelson was going to handle the rock jam. The Secretary pointed out that Stewart knew 

from personal experience that miners failed to use fall protection and lock out power sources 

when in a hurry. Therefore, the Secretary argued that if Stewart did not want Nichelson to 

handle the rock jam, Stewart should have recognized that Nichelson was taking steps to do so 

and clarified his instructions. P. Br. at 16. 

The Secretary also argued that an unwarrantable failure determination was warranted 

under a traditional, factor-dependent, unwarrantable failure analysis, which considers aggravated 

conduct based on extensiveness, duration, notice that greater compliance efforts are necessary, 

abatement efforts, obviousness, high degree of danger, and knowledge. P. Br. at 17-19. In this 

regard, the Secretary reasonably argued that the alleged violations posed a high degree of danger 

and that Stewart should have known that a miner may overlook both lock out/tag out and fall 

protection protocol when in a hurry. P. Br. at 18. Although conceding short duration with high 

danger, the Secretary argued that the condition was extensive because work was being performed 

on the elevated belt and that MSHA’s Rules to Live By were adequate to put Magruder on notice 

that greater efforts were necessary to achieve compliance. P. Br. at 17. 

 In this regard, inspector Sherrill observed Nichelson standing on the elevated conveyor 

belt for 20-30 seconds, without using fall protection or locking and tagging out the conveyor. Tr. 

120-21. Sherrill testified that this was an extensive and extremely hazardous condition because 

two standards were simultaneously violated and Nichelson was performing work at elevated 

heights without fall protection. Tr. 123-24, 135-36. 

 Regarding obviousness or high degree of danger, Sherrill testified that if Nichelson had 

continued working on the elevated conveyor belt, without any fall protection, it was highly likely 

that he would have fallen and suffered fatal injuries. Tr. 103-04. In addition, because Nichelson 

was standing on the belt, any inadvertent belt movement likely would have caused him to fall 

and suffer fatal injuries or broken bones, or be impaled by the breaker bar. Tr. 102-04, 135-36. 

 Regarding notice that greater compliance efforts were necessary, the Secretary relied on 

Sherrill’s testimony that MSHA provided all operators with its Rules to Live By prior to the July 

36 FMSHRC Page 3292
14, 2010 inspection. Tr. 117-18. Also, Stewart acknowledged that Superintendent Twellman 

advised Stewart about MSHA’s Rules to Live By, confirming that Respondent knew that MSHA 

was focusing compliance initiatives on certain standards, including fall protection and lock 

out/tag out standards. Additionally, the Secretary relied on Sherrill’s testimony that he discussed 

the importance of using fall protection during the pre-inspection conference with Stewart. Tr. 69-

70, 141-44. See P. Br. at 18. 

 

 Regarding Respondent’s knowledge of the existence of the violation(s), the Secretary 

relied on Stewart’s allegedly conflicting testimony about what he expected Nichelson to do, wait 

for him or lock out. Tr. 261, 321. Stewart acknowledged that his instructions were unclear. Tr. 

286. The Secretary emphasized that after issuing the instructions, Stewart testified that he 

thought Nichelson was going to lock out the belt, and that the lock out is performed by the 

individual who is going to clear the rock jam. Thus, the Secretary argued that Stewart should 

have assumed that the Nichelson would clear the rock jam himself. Further, Stewart should have 

known from personal experience that it was possible for a hurried miner to climb up to the rock 

jam and overlook the need to lock and tag out and use fall protection. See P. Br. at 19. 

Finally, the Secretary argued that the high negligence designation was warranted per 

regulation because Stewart knew or should have known of the alleged violations, and there were 

no mitigating circumstances, as Sherrill testified. P. Br. at 19; Tr. 107-115. More specifically, 

the Secretary argued that Stewart’s response to a highly hazardous condition, the rock jam, 

constituted high negligence because Stewart should have given effective instructions to 

Nichelson regarding how to clear the rock jam, and should have ensured that Nichelson used fall 

protection and followed lock out/tag out procedures, particularly since a former plant operator, 

who was present that day, could have inadvertently started the conveyor belt while Nichelson 

was standing up there without tying off. Id. at 20-22; Tr. 324. The Secretary relied on Sherrill’s 

testimony that he did not consider Stewart’s alleged instruction to Nichelson to "shut it down and 

wait" to mitigate the ineffectiveness of the communication. Id. The Secretary argued that 

Stewart's unmitigated negligence resulted in a miner working on an elevated conveyor belt 

without the use of fall protection, while power was not locked out. P. Br. at 20-21. In sum, the 

Secretary concluded that while the incident was brief in duration, it was extraordinarily 

dangerous and constituted an inexcusable and unwarrantable breach of mine safety procedures 

involving two mandatory safety standards as a result of a serious lack of reasonable care on the 

part of management. Accordingly, the Secretary argued that the undersigned should have 

enforced both Citation No. 6575266 and Order No. 6575267 as written, and assessed the 

proposed penalties. P. Br. at 24 

Although I rejected these arguments after hearing all the evidence, and weighing the 

credibility of witnesses, the language summarizing my conclusions regarding the unwarrantable 

failure factors indicates that the issue was close and the Secretary’s position was substantially 

justified. 

. . . Citation No. 6575266 was of a very serious nature and placed 

Nichelson in a high degree of danger. I strongly concur with the 

parties' stipulation that the fall protection violation was properly 

designated significant and substantial. Nichelson's failure to don 

fall protection as described in Citation No. 6575266 was highly 

36 FMSHRC Page 3293
likely to result in an injury and there is sufficient evidence to show 

that such an injury was reasonably likely to be fatal. 

Despite the high risk of danger, however, the other unwarrantable 

factors are either neutral or weigh against an unwarrantable failure 

finding. The Secretary's own witness testified that Stewart did not 

have knowledge of the violation and there was no evidence that 

Stewart should have expected Nichelson to violate safety 

protocols. Respondent was not placed on notice that greater efforts 

were needed to achieve compliance with the standard, and the 

violation was not obvious to Stewart given the location of the belt 

and the short duration of the hazard. Although the scope of the 

hazardous practice was limited in terms of area and the number of 

miners affected, Stewart's testimony of past violations suggests 

that the violative practice may have been more extensive and 

signaled a possible culture of disregard for safety standards when 

miners were in a hurry. This is troubling and I take this into 

account in assessing a penalty for the violation. Nevertheless, I 

find that the totality of the factors weigh against a finding of 

unwarrantable failure for Citation No. 6575266. 

35 FMSHRC at 1410-11. 

Having reexamined the record as a whole in light of the Secretary’s proof and arguments 

on briefs, I find that the Secretary had a reasonable basis in fact and law for pursuing its 

litigation theories in the civil penalty proceedings below and was substantially justified to a 

degree that could satisfy a reasonable person. Pierce v. Underwood, 487 U.S. at 565. As 

outlined above, the Secretary established a reasonable basis in truth for the facts alleged, a 

reasonable basis in law for the theories advanced, and a reasonable connection between the facts 

alleged and the legal theories advanced. As the Fourth Circuit has recognized, “although the 

impulse to equate ultimate judicial rejection of the Government's merits position--at whatever 

level--with its lack of substantial justification is understandable, the courts perforce have rejected 

it as inappropriate, for to do so, ‘“would virtually eliminate the ‘substantially justified’ standard 

from the statute.”’ United States v. Paisley, 957 F.2d 1161, 1167 (4th Cir. 1992) (quoting Broad 

Avenue Laundry & Tailoring v. United States, 693 F.2d 1387, 1391-92 (Fed. Cir. 1982). It would 

be “a war with life's realities to reason that the position of every loser in a lawsuit upon final 

conclusion was unjustified.” Id. (quoting Evans v. Sullivan, 928 F.2d 109, 110 (4th Cir. 1991). 

The Secretary’s litigation position and proof could have satisfied a reasonable person. I 

emphasize that this case could have come out differently depending on certain credibility 

resolutions or other legal determinations made after trial. See e.g., Ray, employed by Leo 

Journagan Constr. Co., 20 FMSHRC 1014, 1026-27 (Sept. 1998) (citing Europlast Ltd. v. 

NLRB, 33 F.3d 16, 17-18 (7th Cir. 1994) (“noting that NLRB had no way of foreseeing that the 

judge would make credibility resolutions in favor of Respondent’s witnesses and against 

NLRB’s witnesses.”)). I could have credited Nichelson over Stewart’s varying versions of what 

was said and found that Stewart told Nichelson to shut it down, but did not tell Nichelson to wait 

for him. Nichelson was the plant operator, Stewart was busy with MSHA trying to avoid 

36 FMSHRC Page 3294
additional citations, and Stewart had previously witnessed Nichelson clear one rock jam and was 

aware that Nichelson had cleared at least two rock jams prior to the instant incident on July 14, 

2010. Moreover, Stewart saw Nichelson walk off in the direction of one who would perform lock 

out and tag out. Based on this record evidence, and my close examination of the demeanor of 

Respondent’s witnesses and their responses to tightly scripted and often leading questions from 

Respondent’s counsel, I came close to concluding that Respondent’s litigation strategy was to 

make Nichelson the fall guy, who appeared to have violated instructions, in an effort to shield 

Stewart and Respondent from responsibility for Nichelson’s unlawful actions after direction 

from Stewart. 

Furthermore, irrespective of exactly what Stewart told Nichelson, I found that Stewart’s 

decision to provide instructions near the diesel generator was not without consequence and was 

(at least) moderately negligent. 35 FMSHRC at 1404. Stewart conveyed instructions with a lack 

of care, which departed from what an ordinary and prudent operator, familiar with the mining 

industry and in dealing with MSHA, would have done in the same or similar circumstances. 

There is no doubt that his instructions were conveyed in an extremely noisy environment, where 

they were capable of falling on deaf ears or being misunderstood. Further, Stewart’s instructions 

were conveyed hastily, and outside the earshot of MSHA inspectors, who could have helped 

Respondent properly resolve the rock jam. These facts, particularly in light of Stewart’s admitted 

failures as a rank-and-file miner to comply with both the fall protection and lock out/tag out 

standards when busy or in a hurry, reasonably could have led to a conclusion that Stewart 

signaled Nichelson to resolve the rock jam consistent with this unlawful practice before it 

attracted additional attention from MSHA. In fact, after speaking with Stewart, Nichelson did 

just that, but got caught by MSHA in the violative conduct. That could have been aggravated 

conduct with high negligence by Respondent. 

In short, the Secretary proved up facts and advanced legal theory that reasonably 

supported the view that the Secretary’s litigation position with regard to Citation 6575266 was 

substantially justified. Although ultimately not persuasive, the Secretary's position turned 

largely on credibility and a weighing of various evidence, and it was based on more than 

supposition or conjecture. His legal conclusions flowed from a rational process of reasoning and 

logical deduction. The unwarrantable failure and high negligence issues were close, and could 

have come out another way.2

 

2

 Furthermore, although not specifically argued by the Secretary in light of the stipulation 

that Nichelson was a rank-and-file miner, it is arguable that such stipulation could have been set 

aside as contrary to law. In this regard, it was arguable that Nichelson was acting as 

Respondent’s agent, whose negligence was imputable to Respondent for penalty and 

unwarrantable failure purposes. Section 3(e) of the Mine Act defines "agent" as “any person 

charged with responsibility for the operation of all or a part of a coal or other mine or the 

supervision of the miners in a coal or other mine.” Although Nichelson was not a supervisory or 

managerial employee, he was charged with responsibility for the operation of all or a part of the 

mine. He was the plant operator controlling the operation of the mine by starting and stopping 

the plant from the control booth. 

(continued...) 

36 FMSHRC Page 3295
B. Order No. 6575267 

Section 104(d)(1) Order No. 6575267 alleges that Respondent unwarrantably failed to 

comply with the lock out/tag out standard at 30 C.F.R. § 56.12016. 30 C.F.R. § 56.12016 is a 

mandatory standard which provides: 

Electrically powered equipment shall be deenergized before mechanical work is 

done on such equipment. Power switches shall be locked out or other measures 

taken which shall prevent the equipment from being energized without the 

knowledge of the individuals working on it. Suitable warning notices shall be 

posted at the power switch and signed by the individuals who are to do the work. 

Such locks or preventative devices shall be removed only by the persons who 

installed them or by authorized personnel. 

The citation ascribed high negligence to Respondent for an alleged violative condition that was 

“highly likely” to result in an injury that could reasonably be expected to be fatal. The Secretary 

proposed a penalty of $17,301. 

The substantial justification analysis for this Order is more problematic because I set 

aside the parties stipulation of an S&S violation and vacated Order No. 6575267 based on wellestablished circuit court precedent that neither party discussed or relied upon. I found that 

although the Secretary has long argued that 30 C.F.R. § 56.12016 covers hazards associated with 

mechanical movement as opposed to electric shock, this interpretation is contrary to the clear 

meaning of the standard when examined in the context of the regulatory scheme. 33 FMSHRC 

at 1440, citing Phelps Dodge Corp., 681 F.2d 1189, 1192 (9th Cir. 1982); Northshore Mining 

Co., 709 F.3d 706 (8th Cir. 2013). 

2

 (...continued) 

In taking steps to clear the rock jam and start the plant operating again, it is arguable that 

Nichelson was acting within the scope of his employment as Respondent’s operator agent with a 

level of responsibility normally delegated to management personnel. It is undisputed that a 

supervisor or plant manager usually cleared the rock jams, although a rank-and-file miner 

occasionally did so. Stewart admitted as much. Here, the record establishes that Nichelson was 

engaged in work that entailed "responsibility for the operation of all or a part of a . . . mine.” 

Moreover, he was standing around near the rock jam talking to other miners before Stewart 

arrived. Thus, it could have been argued that Respondent held Nichelson out as its agent with 

apparent authority to act on behalf of management to clear the rock jam. 

Thus, in the unique circumstances of this case, based on the facts the Secretary presented, 

it was arguable that Nichelson acted as agent of Respondent when he performed a typical 

managerial function and cleared a rock jam necessary for restarting production, without using 

fall protection. Had this been persuasively established, the undersigned could have set aside the 

parties stipulation that Nichelson was a rank-and-file miner whose conduct was not attributable 

to Respondent and found that Nichelson’s gross negligence was imputable to Magruder 

Limestone for penalty and unwarrantable failure purposes. 

36 FMSHRC Page 3296
But the undersigned’s reliance on such circuit court precedent does not compel the 

conclusion that the Secretary’s legal interpretation was not substantially justified, particularly 

when Commission law on the subject is unsettled and could be read to support the Secretary’s 

longstanding interpretation that the lock out requirements in 30 C.F.R. § 56.12016 were intended 

to protect miners performing mechanical work even where there was no danger of electric shock. 

Although I ultimately was persuaded that 30 C.F.R. § 56.12016 was not applicable based on the 

reasoning of the Ninth Circuit in Phelps Dodge and the Eighth Circuit in Northshore Mining -- a 

case that was not even decided at the Commission level when the underlying civil penalty matter 

was tried in June 2012 --, this authority was not binding on the Secretary, who was free to litigate 

a contrary position before the Commission to create a split in the circuits, particularly where 

other extant authority supports the Secretary’s long-standing position. See, e.g., Ray, employed 

by Leo Journagan Constr. Co., 20 FMSHRC 1014, 1023 (Sept. 1998)(“[a]lthough section 

56.12016, standing alone, could be viewed as containing a plain and unambiguous lockout 

requirement, section 56.14105 and the case law interpreting that standard creates uncertainty 

regarding the scope of that lockout requirement.”); Empire Iron Mining Co., 29 FMSHRC 999, 

1003 n.8 (2007) (dictum agreeing with dissent in Phelps Dodge [681 F.2d at 1193 (Boochever, 

dissenting)] that the language of § 56.12016 “is clear and unambiguous” and reiterating 

statement of ALJ in underlying decision [29 FMSHRC at 328] that “the standard means exactly 

what it says – to wit, that ‘[e]lectrically powered equipment shall be deenergized before 

mechanical work is done on such equipment.’”); Northshore Mining Co., 34 FMSHRC 663, 674 

(Mar. 2012) (ALJ)(finding a violation of § 56.12016 despite Phelps Dodge and holding that 

“while 30 C.F.R. § 56.12016 and 30 C.F.R. § 56.14105 have many overlapping characteristics, 

they do not in any way preclude one another.”); Blue Mountain Prod. Co., 32 FMSHRC 1464, 

1478-79 (Oct. 2010) (ALJ) (finding violation of § 56.12016 where miners were repairing 

conveyor that was not locked out/tagged out); QMAX Co., 28 FMSHRC 848, 854 (Sept. 2006) 

(ALJ) (finding “clear” violation of § 56.12016 where miners working on conveyor belt that was 

de-energized but not locked out/tagged out were exposed to entanglement hazards). 

In my view, this split of authority gave the Secretary a reasonable basis in law to support 

a violation of § 56.12016 in the instant litigation before the Commission, notwithstanding 

contrary circuit precedent. As I noted in Pattison Sand Company, LLC, 34 FMSHRC 2938, 

2943, n. 3 (Nov. 2012) (ALJ), the Commission has not addressed the issue of non-acquiescence 

to circuit court decisions despite the fact that there is considerable authority that an 

administrative agency charged with the duty of formulating uniform and orderly national policy 

in adjudications is not bound to acquiesce in the views of the U.S. Courts of Appeals that conflict 

with those of the agency. See, e.g., S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273, 

1278-1279 (5th Cir. 1981); see generally Samuel Estreicher, Nonacquiescence by Federal 

Administrative Agencies, 98 Yale L.J. 679, 681 (1989). Clearly, the language of the Mine Act 

gives the Commission jurisdiction over “substantial question[s] of law, policy or discretion.” 30 

U.S.C. § 823(d)(2)(A)(ii)(IV). The Supreme Court has recognized the unique role of the 

Commission as the arbiter of questions of interpretation of the Mine Act. Thunder Basin Coal 

Co. v. Reich, 510 U.S. 200, 214 (1994) (affirming the Commission’s role in formulating a 

uniform and comprehensive interpretation of the Mine Act). 

Accordingly, in this unsettled area, the Secretary was entitled to advance its longstanding 

interpretation of § 56.12016 in an effort to convince the Commission to utilize its unique 

36 FMSHRC Page 3297
adjudicatory expertise and either bow to or disagree with the Ninth and now Eighth Circuits. As 

the Eighth Circuit recognized in an analogous EAJA context: 

The substantial justification standard, however, should not be used 

to deter the government from bringing cases of first impression or 

offering novel arguments. The special circumstances exception “is 

a ‘safety valve’ designed to ‘insure that the Government is not 

deterred from advancing in good faith the novel but credible 

extensions and interpretations of the law that often underlie 

vigorous enforcement efforts.’ ” Russell v. Nat’l Mediation Bd., 

775 F.2d 12884, 1290(5th Cir. 1985)(quoting H.R. Rep. No. 96-

1418 at 11 (1980)). 

S.E.C. v. Zahareas, 374 F.3d 624, 627 (8th Cir. 2004). Similarly, if the case turns on an 

unsettled or close question of law, as here, the government's position will normally be 

substantially justified, notwithstanding the fact that its legal position is ultimately rejected, unless 

it clearly offends established precedent. Washington v. Heckler, 756 F.2d 959, 961-62 (3d Cir. 

(1985). As noted, Commission precedent on this issue has not been clearly established. 

It is troubling that the Secretary declined to appeal to the Commission my underlying 

decision adopting the views of the two circuits in this unsettled area. Had he done so, he may 

have prevailed. Perhaps the Secretary chose to wait for a better case, or for better facts, or for a 

judge’s decision, like those in Northshore Mining, Blue Mountain Prod., or QMAX Co., where 

the judges found a § 56.12016 violation where no electric shock hazard was present. Certainly, 

given this difficult and unsettled area of law, the Secretary presented facts supporting a 

longstanding lock-and-tag-out theory of violation that, although rejected, was substantially 

justified because reasonable persons, including numerous Secretaries and several other 

Commission judges, have thought that it has a reasonable basis in fact and law when mechanical 

work is done on electrically powered equipment. 

Finally, since the Secretary essentially relied on the same facts and legal arguments to 

justify the high negligence and unwarrantable failure designations in Order No. 6575267 that he 

relied on to justify those factually and legally parallel allegations in Citation No. 6575266, I find 

that the Secretary has established that his litigation position with respect to the failure to lock and 

tag out was also substantially justified for essentially the same reasons as those set forth above 

concerning the fall protection violation. Accordingly, I conclude that the Secretary was 

substantially justified both in fact and in law in proceeding with the underlying litigation as a 

whole. 

C. Special Circumstances Make an EAJA Award Unjust with Regard to Order No. 

6575267 

Magruder’s rather audacious play for attorney fees is troubling given its stipulation that it 

engaged in a significant and substantial violation of 30 C.F.R. § 56.12016. Despite the fact that 

Magruder and its attorneys never uncovered the circuit court case law relied on by the 

36 FMSHRC Page 3298
undersigned to vacate Order No. 6575267, it now asks the Commission to award it attorneys’ 

fees and costs because the Secretary should have uncovered this precedent and backed off the 

stipulation. Although Magruder correctly points out that the Secretary has the burden of proving 

that its litigation position was substantially justified, I have found that he met that burden with 

regard to the litigation as a whole, including the unwarrantable failure and high negligence 

designations. 

I further find that special circumstances make an EAJA award unjust with regard to the 

vacatur of Order No. 6575267 because Magruder stipulated to an S&S violation, and it would 

contravene principles of equity, fairness and justice to recompense Magruder for time and 

expense that the administrative tribunal, sua sponte, determined to be erroneous. In explaining 

the “special circumstances” exception, the House Report accompanying the EAJA stated: 

Furthermore, the Government should not be held liable where 

“special circumstances would make an award unjust.” This “safety 

valve” helps to insure that the Government is not deterred from 

advancing in good faith the novel but credible extensions and 

interpretations of the law that often underlie vigorous enforcement 

efforts. It also gives the court discretion to deny awards where 

equitable considerations dictate an award should not be made. 

H.R.Rep. No. 1418, 96th Cong., 2d Sess. at 11, reprinted in 1980 U.S.C.C.A.N 4953, 4990. “The 

EAJA thus explicitly directs a court to apply traditional equitable principles in ruling upon an 

application for counsel fees by a prevailing party.” Oguachuba v. INS, 706 F.2d 93, 98 (2d Cir. 

1983). 

I agree with the Secretary that Magruder justly cannot claim that it deserves to be paid for 

time spent being wrong by stipulating to facts and law supporting the lock out tag out violation 

and concomitant S&S designation during the course of this litigation. Not one billable hour nor 

one word in Magruder’s post-hearing brief appears to be spent on supporting any argument or 

research that Phelps Dodge Corp., 681 F.2d 1189, 1192 (9th Cir. 1982) or progeny justified 

vacating Order No. 6575267.3

I further agree with the Secretary that Magruder’s ongoing stipulation to the fact of the 

S&S violation in Order No. 6575267 had the practical effect of foreclosing the Secretary’s 

argument in the alternative that the facts in question supported a violation of 30 C.F.R. § 

56.14105. This was understandable since stipulations are designed to narrow issues and areas of 

disagreement and simplify proceedings. Balancing the equities under the special circumstances 

exception, Magruder’s work on a stipulated violation cannot equitably be deemed to have been 

expended in pursuit of the fortuitous vacatur achieved here. Cf., United States v. 27.09 Acres of 

Land in Town of Harrison, 43 F.3d 769, 775 (2d Cir. 1994)(eligible, prevailing party was denied 

attorneys' fees under the special circumstances exception because it did not substantially 

 3

 As noted, Northshore Mining Co., 709 F.3d 706 (8th Cir. 2013) came down in March 

2013, two months before my underlying decision, and a year after the judge in that case adopted 

the Secretary’s interpretation of 30 C.F.R. § 56.12016 that was advanced here. 

36 FMSHRC Page 3299
contribute to the successful phase of the litigation by ineligible parties, and fees were not 

expended on discrete efforts that achieved an appreciable advantage). 

IV. Order 

Having evaluated the record as a whole and the arguments presented by each party, and 

having applied the relevant law, it is ORDERED that EAJA fees be DENIED. The Secretary 

has established that an EAJA award is not appropriate because his position was substantially 

justified with regard to Citation No. 6575266 and Order No. 6575267, and that special 

circumstances make an award of fees unjust with regard to the vacatur of Order No. 6575267. 

 /s/ Thomas P. McCarthy

 Thomas P. McCarthy 

 Administrative Law Judge 

Distribution: 

Courtney Przybylski, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 800, Denver, CO 80202-5708 

R. Lance Witcher, Esq., Ogletree, Deakins, Nash, Smoak, & Steward, P.C., 7700 Bonhomme 

Ave., Suite 650, St. Louis, MO 63105 

36 FMSHRC Page 3300
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

December 22, 2014 

 

DECISION

Appearances: Bryan R. Kaufman, Esq., Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, for Petitioner; 

 

Christopher D. Pence, Esq., Hardy Pence PLLC, Charleston, West Virginia, 

for Respondent. 

Before: Judge Paez 

 This case is before me upon the Petition for the Assessment of a Civil Penalty filed by the 

Secretary of Labor (“Secretary”) pursuant to section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). In dispute are two section 104(a)(1) 

citations issued by the Mine Safety and Health Administration (“MSHA”) to M-Class Mining 

LLC (“M-Class” or “Respondent”) as the owner and operator of the MC #1 Mine. To prevail, the 

Secretary must prove the cited violations “by a preponderance of the credible evidence.” In re: 

Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995) 

(citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom.,

Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1106–07 (D.C. Cir. 1998). This 

burden of proof requires the Secretary to demonstrate that “the existence of a fact is more 

probable than its nonexistence.” RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 

2000) (citations and internal quotation marks omitted), aff’d, 272 F.3d 590 (D.C. Cir. 2001). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

M-CLASS MINING LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2011-295 

A.C. No. 11-03189-241092 

Mine: MC #1 Mine 

36 FMSHRC Page 3301
I. STATEMENT OF THE CASE 

 The two alleged violations in this case were issued at M-Class Mining’s MC #1 Mine. 

The first alleged violation involves Citation No. 8424233, which charges M-Class with a 

violation of 30 C.F.R. § 75.380(d)(4)1

 for failing to maintain the mine’s alternate escapeway at 

the required width. The second involves Citation No. 8424774, which charges Respondent with a 

violation of 30 C.F.R. § 77.1109(d)2

 for failing to provide a fire extinguisher at the top of the 

clean coal stacker tower. The Secretary characterizes M-Class’s negligence as high for Citation 

No. 8424233 and as moderate for Citation No. 8424774. The Secretary proposes a penalty of 

$425.00 for the first violation and $100.00 for the second, for a total penalty of $525.00. 

 Chief Administrative Law Judge Robert J. Lesnick assigned Docket No. LAKE 2011-295 

to me, and I held a hearing in Evansville, Indiana.3 The Secretary presented testimony from 

MSHA inspectors Marty Gayer and J. Scott Lee. M-Class Mining presented testimony from 

Safety Manager Tim Kirkpatrick, former M-Class Vice President of Operations Barrett Fox, and 

current M-Class President Anthony Webb. The parties each filed post-hearing briefs and reply 

briefs. 

 1

 Section 75.380(d) provides, in relevant part— 

Each escapeway shall be – 

. . . . 

(4) Maintained at least 6 feet wide except – 

. . . . 

(iv) Where mobile equipment near working sections, and other equipment 

essential to the ongoing operation of longwall sections, is necessary during 

normal mining operations, such as material cars containing rock dust or 

roof control supplies, or is to be used for the evacuation of miners off the 

section in the event of an emergency. In any instance, escapeways shall be 

of sufficient width to enable miners, including disabled persons, to escape 

quickly in an emergency. When there is a need to determine whether 

sufficient width is provided, MSHA may require a stretcher test where 4 

persons carry a miner through the area in question on a stretcher. 

2

 Section 77.1109 provides, in relevant part, as follows: 

Preparation plants, dryer plants, tipples, drawoff tunnels, shops, and other 

surface installations shall be equipped with the following firefighting 

equipment. 

. . . . 

(d) Fire extinguishers shall be provided at permanent electrical 

installations commensurate with the potential fire hazard at such 

installation in accordance with the recommendations of the National Fire 

Protection Association. 

3

 In this decision, the hearing transcript, the Secretary’s exhibits, and M-Class Mining’s 

exhibits are abbreviated as “Tr.,” “Ex. GX–#,” and “Ex. MC–#,” respectively. 

36 FMSHRC Page 3302
II. ISSUES

 For Citation No. 8424233, the Secretary asserts that Respondent failed to fulfill the duty 

imposed by 30 C.F.R. § 75.380(d)(4) by placing equipment in the mine’s alternate escapeway 

that impermissibly reduced the width of the passage, preventing miners from exiting quickly 

through the escapeway during an emergency. (Sec’y Br. at 8–11.) The Secretary claims that 

M-Class’s actions constituted high negligence because the operator knew MSHA considered the 

conditions to be a violation. (Id. at 14.) In contrast, M-Class argues that an exception in the 

regulation requires only that miners be able to move through the narrowed escapeway carrying a 

stretcher, and that its miners satisfactorily completed this stretcher test. (Resp’t Br. at 1–2.) 

M-Class does not claim that any other regulatory exceptions apply. (Id.) Alternatively, 

Respondent claims its actions did not constitute high negligence because it did not know the 

conditions constituted a violation under the regulations. (Id. at 16–17.) 

 For Citation No. 8424774, the Secretary contends M-Class failed its duty under 30 C.F.R. 

§ 77.1109(d) to provide a fire extinguisher for all permanent electrical installations. (Sec’y Br. at 

16–17.) The Secretary asserts that electrical fixtures at the top of M-Class’s clean coal stacker 

belt required a fire extinguisher. (Id. at 17.) Respondent contends no permanent electrical 

installations were located at the top of the clean coal stacker, and therefore a fire extinguisher 

was not required at the location. (Resp’t Br. at 18.) 

 Accordingly, the following issues are before me: (1) whether the Secretary has carried his 

burden of proof that Respondent violated the Secretary’s mandatory health or safety standards 

regarding the requisite width of mine escapeways; (2) whether the Secretary has carried his 

burden of proof that Respondent violated the Secretary’s mandatory health or safety standards 

regarding the presence of fire extinguishers at above-ground mine locations; (3) whether the 

record supports the Secretary’s assertions regarding the gravity of the alleged violations; (4) 

whether the record supports the Secretary’s assertions regarding M-Class Mining’s negligence in 

committing the alleged violations; and (5) whether the Secretary’s proposed penalties are 

appropriate. 

 For the reasons that follow, Citation No. 8424233 is AFFIRMED as written and Citation 

No. 8424774 is VACATED. 

III. BACKGROUND 

 The MC #1 Mine is a coal mine in Franklin County, Illinois, that opened in 2008. 

(Tr. 194:15–20.) By October 2010, M-Class had begun development of the headgate and tailgate 

that eventually would provide access and ventilation for the mine’s first longwall panel. 

(Tr. 74:8–16.) The mine’s headgate, which is integral to creating the longwall operation, had 

three entries, with large pillars of coal approximately 100 feet wide separating each entry. 

(Tr. 78:7–9, Tr. 95:2–3; Ex. MC–1, Ex. MC–1A). Every 100 feet, crosscuts through the coal 

pillars connected the entries, creating a latticework grid pattern if viewed from above. (Tr. 95:7–

10; Ex. MC–1.) 

36 FMSHRC Page 3303
 M-Class installed permanent concrete stoppings in the crosscuts to control the flow of air 

through the mine. (Tr. 79:21–23, 179:12–22.) Fresh air flowed into the headgate through the No. 

3 Entry to ventilate the area being developed by a continuous miner. (Tr. 78:19–79:6.) The No. 3 

Entry, as the intake, also served as the primary escapeway from the headgate. (Tr. 78:19–25, 

190:13–191:12.) After sweeping across the face where active mining was taking place, the nowcontaminated air flowed down the No. 1 Entry, or the return, and out of the mine. (Tr. 79:24–25.) 

A lesser volume of air also flowed away from the active mining face and down the No. 2 Entry, 

which is located between the No. 1 and No. 3 entries. (Tr. 79:7–16.) The No. 2 Entry served as 

the mine’s alternate escapeway, i.e., the back-up route of escape in case the primary escapeway 

is blocked. (Tr. 79:7–12.) 

 In accordance with MSHA regulations, M-Class placed its coal conveyor belt in the No. 2 

Entry. (Tr. 79:7–9.) The coal conveyor belt transports coal mined during the headgate’s 

development to the surface, where the coal is processed before being placed into storage. 

(Tr. 27:5–12, 143:14–17.) After this processing, a long belt takes the clean coal to the top of a 

100-foot-tall clean coal stacker tower, from which the mine loads the coal into storage silos to 

await shipment to market. (Tr. 157:8–12, 158:2–3.) 

 In the No. 2 Entry, M-Class had hung the coal conveyor belt from the ceiling so the 

bottom of the belt’s frame was two or three feet above the mine floor. (Tr. 38:23–39:15, 90:20–

21.) Near the active mining face, M-Class also kept several other large pieces of equipment in 

the No. 2 Entry, including a power transformer, cable tub, and water booster pump. (Tr. 28:11–

23.) The power transformer supplied electricity to mining equipment used at the face. 

(Tr. 28:20–23.) The water pump provided water to the continuous miner to suppress the coal dust 

produced from the mining process. (Tr. 28:22–23.) The cable tub held slack in the cable that 

connected the transformer with power sources closer to the surface. (Tr. 29:4–7.) 

 M-Class developed the headgate of the MC #1 Mine at a rate of nearly 500 feet per day. 

(Tr. 221:7–14.) As a result, M-Class had to advance its coal belt and the mining equipment by 

several crosscuts every 24 to 48 hours. (Tr. 86:2–5, 221:10–14.) To simplify the moving process, 

the company chose to leave the transformer, cable tub, and booster pump in the No. 2 Entry 

rather than placing them in the crosscuts. (Tr. 209:13–210:6.) By leaving the equipment in the 

entry, M-Class could advance the section by hooking the three pieces of equipment to a scoop, 

towing them straight forward like a train. (Tr. 207:15–17.) M-Class also believed that moving 

the equipment straight forward rather than in and out of the crosscuts enhanced safety in the 

mine. (Tr. 221:12–222:9.) 

IV. CITATION NO. 8424233—THE NARROWED ESCAPEWAY 

A. Findings of Fact—Citation No. 8424233 

On October 22, 2010, MSHA Inspector Marty Gayer visited M-Class Mining’s MC #1 

Mine as part of a regular quarterly inspection of the mine. (Tr. 22:6–14.) Inspector Gayer has 

extensive training and experience as a mining safety inspector, working for more than ten years 

as an MSHA inspector, training specialist, and conference litigation representative. (Tr. 16:20–

17:4.) Gayer also has specialized training in mine emergency situations and worked as a member 

36 FMSHRC Page 3304
of MSHA’s national mine rescue team. (Tr. 17:8–9, 17:25–18:18.) Prior to joining MSHA, 

Gayer worked for almost 25 years in various other positions in the coal mining industry. 

(Tr. 20:7–13.) 

 On the day of this inspection, Inspector Gayer went to the headgate, which M-Class had 

advanced approximately 1,500 feet to the thirteenth crosscut. (Tr. 22:18–22.) Between the 

twelfth and thirteenth crosscuts in the No. 2 Entry, Gayer found the alternate escapeway 

substantially blocked by the coal conveyor belt on one side and on the other side by mining 

equipment, including the power transformer, cable tub, and water pump. (Tr. 23:2–5, 28:11–23.) 

The lifeline running down the mine roof of the alternate escapeway passed between the coal belt 

and these three pieces of equipment. (Tr. 42:3–6.) Inspector Gayer measured the distance 

between the power transformer and the frame of the coal belt and found a width of only 34 

inches. (Tr. 35:20–36:13; Ex. GX–2 at 3.) The passageway narrowed even further to 17.5 inches 

between the belt and the cable tub, and just 15 inches between the belt and the booster pump. 

(Tr. 37:1–13.) Altogether, the equipment narrowed the alternate escapeway for a length of 

approximately 50 feet. (Tr. 57:13–15.) 

 Informed that the alternate escapeway was impermissibly narrow, the operator requested 

permission to attempt a stretcher test through the narrowed area. (Tr. 58:7–8.) To perform the 

stretcher test, four miners placed another miner on an emergency stretcher and attempted to carry 

him through the narrowed escapeway. (Tr. 57:21–25.) The miners were able to pass through the 

pinched area, but Gayer noted that they got through the area “with difficulty” and had to juggle 

and maneuver the occupied stretcher to pass the constricted section. (Tr. 58:15–21, 115:3–7.) 

Rather than carrying the stretcher with one miner at each corner, as designed, the miners had to 

line up single file and reach across the stretcher to avoid dumping out the supported miner. 

(Tr. 199:9–12, 204:13–25.) To pass the power transformer, which stood approximately five feet 

tall, the miners had to lift the occupied stretcher above their heads and sidestep through the 

narrow area. (Tr. 58:10–12.) The miners rested the stretcher’s weight on the water pump to pass 

that piece of equipment. (Tr. 204:6–12.) Specifically, Inspector Gayer saw the miners scooting or 

sliding the stretcher along the mining equipment. (Tr. 58:7–21.) While passing through the 

pinched area, the miners at times held on to the frame of the coal conveyor belt. (Tr. 210:19–

211:22.) 

 Based on his observations, Inspector Gayer issued Citation No. 8424233, alleging a 

violation of 30 C.F.R § 75.380(d)(4): 

The Alternate Escapeway in #2 Conveyor Belt Entry for Headgate 

#1 is not being maintained at least 6 feet wide. The presence of the 

Section Transformer #PC 2, the 12,470 high voltage cable tub, ISE 

Booster Water Pump #WP 1, and the conveyor belt reduces the 

width from 15 to 34 inches between the listed equipment and the 

conveyor belt on the North side and from 16 to 35 inches between 

the rib and the listed equipment on the South side for a distance of 

approximately 50 feet. The route of travel at this location does not 

pass [through] a door or other permanent ventilation controls, nor 

is there any necessary supplemental roof support in the affected 

36 FMSHRC Page 3305
area, located between 12 and 13 crosscuts. The reduced width is 

due solely to the presence of the equipment listed. 

(Ex. GX–1 at 1.) Gayer designated the violation as unlikely to cause injury and characterized 

M-Class Mining’s negligence as “high.” (Id.) Inspector Gayer terminated the citation five days 

later on October 27 after M-Class raised the coal conveyer belt so its bottom was at least five feet 

above the mine floor. (Id. at 2.) 

B. Analysis and Conclusions of Law—Citation No. 8424233 

 Respondent relies on two theories to escape liability: (1) the area in question fits under 

the exception provided in section 75.380(d)(4)(iv), and, alternatively, (2) M-Class did not have 

sufficient notice that the conditions constituted a violation. (Resp’t Br. at 6–16.) 

 1. Violation of Section 75.380(d)(4) 

 Section 75.380(d)(4) requires that a coal mine’s escapeways be at least six feet, or 72 

inches, wide unless an area falls under one of a limited number of exceptions. To prove a 

violation, therefore, the Secretary must show (1) the escapeway was less than six feet wide, and 

(2) the cited area does not fall under any of four enumerated exceptions. 

 The exception provided by section 75.380(d)(4)(iv) allows for mobile equipment or 

longwall mining equipment to narrow the escapeway to less than six feet. 30 C.F.R. 

§ 75.380(d)(4)(iv). Yet the area must still be of sufficient width “to allow miners, including 

injured persons, to escape quickly in an emergency.” Id. To determine whether an area is of 

sufficient width, MSHA may require a stretcher test, whereby four miners carry a person through 

the area in question on a stretcher. Id.; 61 Fed. Reg. 9764, 9811–9812 (Mar. 11, 1996). 

 Here, Respondent argues that the cited area fell under the exception provided by section 

75.380(d)(4)(iv).4

 (Resp’t Br. at 7–11.) M-Class further asserts that its miners satisfactorily 

completed a stretcher test, proving that the escapeway was of sufficient width in accordance with 

the regulation. (Resp’t Br. at 11–13.)5

 

 4

 M-Class does not dispute the Secretary’s contention that the exceptions provided in 

section 75.380(d)(4)(i), (ii), and (iii) do not apply. See 30 C.F.R. § 75.380(d)(4)(i), (ii), (iii) 

(describing exceptions to the width requirement for escapeways). 

5

 In support of its argument, Respondent points to Rochester & Pittsburgh Coal Co., 

13 FMSHRC 933 (June 1991) (ALJ). (Resp’t Br. at 12–13.) In that case, an Administrative Law 

Judge vacated the Secretary’s citation under a prior version of the regulation because the 

Secretary failed to meet its burden of proof to show a stretcher could not be navigated through an 

area approximately 36 inches wide. Nevertheless, Rochester & Pittsburgh is both legally and 

factually distinct from the case at hand. First, Rochester & Pittsburgh dealt with an earlier 

version of the regulations addressing the need to maintain escape facilities to ensure passage. 

Furthermore, Rochester & Pittsburgh involved a three-foot-wide opening, more than double the 

width of the escapeway in question here. I am not bound by Rochester & Pittsburgh, and, given 

the factual and legal differences, I see no reason to follow it. 29 C.F.R. § 2700.69(d). 

36 FMSHRC Page 3306
 Contrary to Respondent’s assertion, the evidence before me does not establish that the 

alternate escapeway was wide enough that miners, including injured miners, could escape 

quickly during an emergency. Respondent’s stretcher test failed outright under a strict reading of 

section 75.380(d)(4)(iv), which requires four persons to carry a miner through the area in 

question on a stretcher. As Inspector Gayer and M-Class Vice President Fox testified, the miners 

rested the stretcher on top of the water pump and slid it across the equipment instead of carrying 

it. I see little to differentiate dragging the stretcher across the equipment at hand and simply 

placing the stretcher on the ground and dragging it through the cited area. Neither scenario 

satisfies the text of the regulation. 

 Moreover, the evidence does not show that M-Class’s stretcher test satisfied the 

protective intent of the regulation. Inspector Gayer credibly testified that the miners had 

difficulty maneuvering through the chokepoint created by the belt and the mining equipment. 

Instead of carrying the stretcher as designed, the miners had to line up single file, lift the disabled 

miner over their heads, and then shuffle the stretcher across the water pump in order to pass 

through the narrow area. The miners were in regular contact with the frame of the coal conveyor 

belt, which, when in operation, presents an additional hazard to the miners. Notwithstanding 

Vice President Fox’s broad assertions that the miners “carried the guy right down through there” 

(Tr. 196:5–7), Respondent did not present evidence countering Inspector Gayer’s testimony. 

Given Inspector Gayer’s detailed testimony and contemporaneous notes, I credit his testimony 

over the vague statements by Fox. 

 Furthermore, it is important to note that the miners performing the stretcher test 

encountered these difficulties in ideal conditions. The Commission has consistently held that the 

test with respect to the use of an escape route “is not whether miners have been safely traversing 

the route under normal conditions, but rather the effect of the condition of the route on miners’ 

ability to expeditiously escape a dangerous underground environment in an emergency.” Am. 

Coal Co., 29 FMSHRC 941, 950 (Dec. 2007) (citing Maple Creek Mining, Inc., 27 FMSHRC 

555, 560 (citing 61 Fed. Reg. at 9810)). The limited visibility and hazardous conditions caused 

by an emergency would be expected to enhance the difficulties the miners encountered while 

attempting the stretcher test. (Tr. 42:10–19.) 

 Respondent’s unwavering focus on the miners’ ability to squeeze through the constricted 

escapeway is misplaced. The Mine Act must be construed broadly to achieve the goal of health 

and safety, and exceptions to remedial legislation must be construed narrowly. Local Union 

7107, UMWA v. Clinchfield Coal Co., 124 F.3d 639, 640–41 (4th Cir. 1997), cert denied, 523 

U.S. 1006 (1998); Sec’y of Labor v. Cannelton Indus. Inc., 867 F.2d 1432, 1437 (D.C. Cir. 

1989). The purpose of the escapeway-width requirement is to ensure that all persons, including 

injured miners, can quickly get out of harm’s way amid a potentially catastrophic emergency. 

See 61 Fed. Reg. at 9811–9812. A successful stretcher test is a “demonstration that there is no 

delay in escape.” Id. M-Class’s stretcher test demonstrated just the opposite—that miners 

scrambling to escape a life-threatening emergency would be forced to wait as their colleagues 

twisted and contorted and juggled a full stretcher through a 15-inch gap. Miners should not be 

forced to choose between their own safety and the rescue of injured comrades. 

36 FMSHRC Page 3307
 Based on the evidence before me, I determine that Respondent’s stretcher test did not 

show that the MC #1 Mine’s alternate escapeway was of sufficient width to enable miners, 

including disabled persons, to escape quickly in an emergency. Accordingly, the exception 

provided in Section 75.380(d)(4)(iv) does not apply to the cited area.6

 

 2. M-Class Mining’s Knowledge 

 In its defense, Respondent claims it cannot be penalized for the blocked escapeway 

because it had no knowledge that MSHA considered the discovered conditions to be a violation. 

(Resp’t Br. at 13–16.) When determining whether an operator had fair notice of the requirements 

of a regulation, the Commission asks “whether a reasonably prudent person familiar with the 

mining industry and the protective purposes of the standard would have recognized the specific 

prohibition or requirement of the standard.” Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 

1990). In applying this standard, the Commission has taken into account a wide variety of 

factors, including the text of the regulation, its placement in the overall regulatory scheme, its 

regulatory history, the consistency of the agency’s enforcement, and whether MSHA has 

published notices informing the regulated community with “ascertainable certainty” of its 

interpretation of the standard in question. Lodestar Energy, Inc., 24 FMSHRC 689, 694–95 (July 

2002). 

 First, M-Class asserts the regulation is unclear because both the text and MSHA have not 

provided a minimum acceptable width under section 75.380(d)(4)(iv). (Resp’t Br. at 15.) Here, 

however, the regulatory history repeatedly emphasizes the need for miners to be able to escape 

the mine without delay. 61 Fed. Reg. at 9811–9812. The facts in this instance establish that 

M-Class did not meet that standard. The escapeway narrowed to 17.5 inches at the cable tub and 

to a mere 15 inches between the operational coal belt and the water booster pump. Navigating 

such a small gap would require careful maneuvering for even an unencumbered miner, let alone 

a team of equipped miners carrying a wounded colleague during an emergency. 

 Second, Respondent argues that MSHA’s failure to cite the blocked escapeway in prior 

inspections should forestall the violation in this instance. (Resp’t Br. at 16.) In support of its 

argument, Respondent points to a number of decisions from Commission Administrative Law 

Judges vacating citations where MSHA for years prior had either failed to identify violations or 

openly declined to cite the conditions. (Id.) Those facts are not present in this case. At the time of 

the inspection, M-Class’s first headgate was only 1,500 feet deep. M-Class developed the 

headgate at a rate of nearly 500 feet per day, so the specific conditions in this citation could not 

have existed for more than several days prior to MSHA’s October 22 inspection. 

 Considering these factors, I determine that a reasonably prudent miner would have 

recognized the alternate escapeway with equipment stored in it was too narrow to allow a 

stretcher team to escape quickly. While MSHA’s regulations envisage instances where an 

alternate escapeway can be less than six feet wide, reducing the passage to a mere 15 inches is 

 6

 Because M-Class’s escapeway did not meet the regulation’s width requirement, I need 

not reach the question of whether the power transformer, cable tub, and water pump qualified 

under the section as mobile equipment or equipment necessary for the development of a 

longwall. 

36 FMSHRC Page 3308
such a drastic reduction that any reasonable miner would notice the narrowing and realize it is 

insufficient. M-Class’s tortured reading of the regulation is akin to shoving a square peg into a 

round hole. That exercise, like M-Class’s argument, ultimately fails. 

 Consequently, I conclude that the Secretary has satisfied both elements for a violation of 

section 75.380(d)(4), as the cited area of the escapeway was not at least six feet wide, and no 

statutory exceptions to the width requirement were applicable. I also conclude that M-Class 

reasonably should have known that its actions constituted a violation of the regulation. 

3. Gravity

 M-Class Mining does not dispute the Secretary’s gravity determination for Citation 

No. 8424233. Because the primary escapeway remained clear, I determine that the Secretary 

properly concluded that the violation was unlikely to cause injury and that the injuries most 

likely to result from an incident involving the violative conditions would be lost workdays or 

restricted duty. Finally, I agree that the Secretary properly determined that the violative 

conditions affected thirteen persons, the number of miners working in that section of the mine. 

 4. Negligence

 

 M-Class Mining disputes the Secretary’s determination that the operator displayed high 

negligence in allowing the violative condition to exist, as the mine did not know MSHA 

considered the blocked escapeway to be a violation. (Resp’t Br. at 16–18.) As discussed above, 

however, Respondent should have known that the escapeway was too narrow to allow injured 

miners to escape quickly. Furthermore, I note that M-Class abated the violation by simply raising 

the coal conveyor belt approximately three feet higher than it had been initially installed. 

Although M-Class presented testimony to the difficulty of placing its equipment in crosscuts 

rather than the escapeway, Respondent provided no explanation for its failure to adopt the simple 

precaution of raising the conveyor belt. Absent such evidence, it is unclear to me why M-Class 

failed to pursue such a seemingly straight-forward precaution to meet the high standards of miner 

safety required by the Mine Act. I conclude that the Secretary has demonstrated M-Class 

Mining’s level of negligence to be high. See 30 C.F.R. § 100.3(d) at Table X (suggesting “high 

negligence” where the “operator knew or should have known of the violative condition or 

practice, and there are no mitigating circumstances.”) 

C. Penalty 

 The Secretary proposes a $425.00 civil penalty for this violation. Under section 110(i) of 

the Mine Act, I must consider six criteria in assessing a civil penalty: (1) the operator’s history of 

previous violations; (2) the appropriateness of the penalty relative to the size of the operator’s 

business; (3) the operator’s negligence; (4) the penalty’s effect on the operator’s ability to 

continue in business; (5) the violation’s gravity; and (6) the demonstrated good faith of the 

operator in attempting to achieve rapid compliance after notification of a violation. 30 U.S.C. 

§ 820(i). 

36 FMSHRC Page 3309
 In the seven months prior to the MSHA inspectors’ visit, M-Class Mining received 

sixteen citations or orders for violations of mandatory safety and health standards. M-Class is a 

relatively large operator, receiving nine out of a potential ten points for controller size under the 

Secretary’s penalty criteria in his Part 100 regulations. See 30 C.F.R. § 100.3(b). Nothing in the 

record suggests that the penalty would impinge on Respondent’s ability to remain in business. 

Moreover, M-Class was highly negligent in allowing its mining equipment to block much of the 

mine’s alternate escapeway, and although the violation was not likely to cause injury or illness, 

the restricted escapeway affected a large number of persons. Nevertheless, I acknowledge 

Respondent’s timely efforts to remedy the violative condition. 

 Considering all of the facts and circumstances of this matter, I conclude that the 

Secretary’s proposed penalty is appropriate and assess a penalty of $425.00. 

V. CITATION NO. 8424774—THE CLEAN COAL STACKER 

A. Findings of Fact—Citation No. 8424774 

 On October 28, MSHA Inspector J. Scott Lee inspected the surface areas at M-Class’s 

MC #1 Mine as part of a regular quarterly inspection of the mine. (Tr. 141:25–142:5.) Lee had 

worked for a total of 37 years in the mining industry, including 22 to 23 with mine operators and 

another 13 with MSHA. (Tr. 122:4–6.) Lee inspected coal stacker belts as a regular part of his 

job with MSHA and frequently as a safety inspector for the coal mines. (Tr. 122:21–25.) 

 The MC #1 Mine’s stacker belt is powered by drive motors located at the bottom of the 

belt. (Tr. 144:8–13.) The top of the clean coal stacker belt contains a laser sensor that trips a 

mechanism to stop the motors if the belt becomes clogged. (Tr. 163:20–164:3.) The sensor 

switch is controlled from the main controller room, not from the top of the belt. (Tr. 166:23–25.) 

The laser sensor is connected to the main controller room with a low-voltage computer cable. 

(Tr. 163:20–164:12.) In addition, several lights hang from the coal stacker tower to illuminate 

the area below. (Tr. 167:18–168:7.) There are also a number of lights along the walkway leading 

to the top of the clean coal stacker. (Tr. 167:15–17.) No power distribution center or power box 

is located at the top of the clean coal stacker belt. (Tr. 170:2.) 

 Inspector Lee testified that he found permanent electrical installations, such as a circuit 

control panel, at the top of the mine’s clean coal stacker. (Tr. 131:17–20.) Lee searched for but 

did not find a fire extinguisher at the top of the coal stacker. (Tr. 139:7–20.) Based on his 

observations, Inspector Lee issued Citation No. 8424774, alleging a violation of 30 C.F.R. 

§ 77.1109(d): “There was no fire extinguisher located at the permanent electrical installation. 

This condition was observed at the drive motor for the clean coal stacker belt on top of the clean 

coal stacker.” (Ex. GX–4.) Lee designated the violation as unlikely to cause injury and 

characterized M-Class’s negligence as “moderate.” (Id.) 

 When M-Class Mining’s safety manager, Timothy Kirkpatrick, learned that Inspector Lee 

was issuing a citation for the lack of a fire extinguisher at the top of the tower, he asked Lee what 

equipment required a fire extinguisher. (Tr. 159:25–160:3.) Lee told Kirkpatrick the citation was 

for two gray boxes at the top of the tower. (Tr. 160:2–4.) When pressed by Kirkpatrick, Lee 

36 FMSHRC Page 3310
indicated the citation was for the stacker belt’s drive motors. (Tr. 160:5–10.) After Kirkpatrick 

informed Inspector Lee that the belt’s drive motors were not located at the top of the tower, Lee 

indicated to Kirkpatrick that two gray boxes at the top of the tower required a fire extinguisher. 

(Tr. 160:11–20.) 

 Inspector Lee terminated the citation after M-Class placed a fire extinguisher on two gray 

boxes at the cited location that hold a carbon dioxide bottle. (Tr. 161:5–13, 163:1–9; Ex. GX–4 

at 1, Ex. GX–5 at 3.) Inspector Lee did not go back to the top of the tower to see where M-Class 

placed the fire extinguisher. (Tr. 149:3–7.) 

 Inspector Lee did not mention the presence of the drive motor in his field notes, which 

Lee thought he filled out shortly after issuing the citation. (Tr. 125:16–24.) Lee’s notes do not 

identify the installation requiring a fire extinguisher, but instead refer generally to an unspecified 

“permanent electrical installation.” (Ex. GX–5 at 2.) 

B. Analysis and Conclusions of Law—Citation No. 8424774 

 The threshold issue is whether the Secretary has established a violation of 30 C.F.R. 

§ 77.1109(d). Inspector Lee issued Citation No. 8424774 for M-Class Mining’s failure to provide 

a fire extinguisher at the top of the clean coal stacker belt. (Ex. GX–4.) To demonstrate a 

violation of 30 C.F.R. § 77.1109(d), the Secretary must prove by the preponderance of the 

evidence that the operator (1) failed to provide a fire extinguisher (2) commensurate with the fire 

hazard presented by an electrical installation. 

 In a sparse, two-page argument, the Secretary asserts that the citation should be affirmed 

because M-Class failed to provide a fire extinguisher for the sensor eye located at the top of the 

clean coal stacker belt. (Sec’y Br. at 16.) Notably, the Secretary’s argument is a sharp diversion 

from the citation issued during Lee’s October 28 inspection. Inspector Lee explained his 

erroneous wording in the citation as a clerical error that resulted from him using a template 

citation rather than starting from scratch. (Tr. 124:8–20.) Although the Secretary had ample 

opportunity to amend the citation to properly reflect the violative conditions discovered atop the 

clean coal stacker belt, he nevertheless declined to do so. Moreover, Lee’s notes from the 

inspection provide no additional clarity. (Ex. GX–5 at 2–3.) 

 Inspector Lee’s citation and notes are not the only shortcomings in the Secretary’s case. 

At hearing, Lee’s testimony was unclear at best. When the Secretary’s counsel presented 

Inspector Lee with Respondent’s photographs of the area at the top of the clean coal stacker belt, 

Lee could not identify with certainty a permanent electrical installation requiring a fire 

extinguisher nearby. (Tr. 129:23–130:7, 131:13–132:15.) When further prompted on direct 

examination to identify the location of the cited permanent electrical installation, Inspector Lee 

first stated he had a feeling the electrical installation was on one side of the stacker tower but 

then subsequently identified the culprit as a small metal box located on the opposite side of the 

tower. (Tr. 132:9–12, 134:13–135:1; Ex. GX–6 at 2–5.) Undeterred, Lee again switched his 

testimony on cross-examination, asserting that the cited permanent electrical installation was in 

the first location he identified. (Tr. 146:13–25.) The Secretary did not introduce his own 

photographs identifying the violative condition. 

36 FMSHRC Page 3311
 Inspector Lee also could not identify what the alleged permanent electrical installation 

was. Lee first testified that he would have cited a circuit control panel. (Tr. 131:17–20.) He 

subsequently testified that even a junction box, where two wires meet, would be a permanent 

electrical installation for the purposes of section 77.1109(d). (Tr. 135:17–19). On crossexamination, Lee testified that he had identified a circuit box or control panel that was used to 

distribute electricity to instruments at the top of the clean coal stacker belt. (Tr. 145:5–8.) Lee 

then expanded his definition of a permanent electrical installation to include all conduits. 

(Tr. 145:9–18.) When questioned whether his expansive understanding effectively includes all 

wires capable of carrying an electrical current, Lee backed off his testimony and again insisted 

he was looking for a box. (Tr. 145:19–146:6.) Lee further testified that he did not need to know 

the contents of a “silver box” in order to identify it as a permanent electrical installation. 

(Tr. 150:2–18, 151:19–23.) Indeed, Lee admitted that he had not thoroughly checked the alleged 

electrical installation he cited. (Tr. 151:20–152:3.) 

 Considering Kirkpatrick’s testimony regarding the inspection, I do not find Inspector 

Lee’s testimony to be credible. See Grizzle v. Picklands Mather & Co., 994 F.2d 1093, 1096 (4th 

Cir. 1993) (indicating ALJs have the “sole power to make credibility determinations and resolve 

inconsistencies in the evidence”). Furthermore, the citation itself is admittedly inaccurate and the 

notes unilluminating. Altogether, the Secretary has provided no evidence to support his 

allegations that the top of M-Class Mining’s clean coal stacker belt contained any permanent 

electrical installation requiring a fire extinguisher to be placed nearby. Although the Secretary in 

his reply brief points to the laser sensor as proof that a fire extinguisher was needed atop the 

clean coal stacker, he provides no details regarding the fire hazard posed by this low-voltage 

sensor and no theory suggesting what type of fire extinguishing equipment such an instrument 

would require.7

 The Secretary chose not to put Inspector Lee on the stand in rebuttal or call any 

rebuttal witnesses. 

The Mine Act imposes on the Secretary the burden of proving the violation the Secretary 

alleges by a preponderance of the evidence. See Consolidation Coal Co., 11 FMSHRC 966, 973 

(June 1989) (citations omitted). Given the lack of evidence before me, I determine that the 

Secretary has not satisfied his burden of proof to demonstrate the elements of a violation of 

section 77.1109(d). Citation No. 8424774 therefore is vacated. 

 7

 Although MSHA has not provided direct guidance on what constitutes a permanent 

electrical installation for the purposes of section 77.1109(d), the agency’s Program Policy 

Manual mentions “electric motors or transformers” as examples of such installations. V MSHA, 

U.S. Dep’t of Labor, Program Policy Manual, Part 77, 199–200 (2003). Here, the Secretary has 

provided no evidence to suggest the low-voltage sensor shares any essential characteristics with 

the permanent electrical installations noted in MSHA’s Program Policy Manual. 

36 FMSHRC Page 3312
VI. ORDER

In light of the foregoing, it is hereby ORDERED that Citation No. 8424233 is 

AFFIRMED. It is further ORDERED that Citation No. 8424774 be VACATED. 

WHEREFORE, Respondent is ORDERED to pay a penalty of $425.00 within 40 days of 

this Decision.8 

/s/ Alan G. Paez

Alan G. Paez 

Administrative Law Judge 

Distribution: 

Bryan Kaufman, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer Boulevard, 

Suite 515, Denver, CO 80204-3516 

Christopher D. Pence, Esq., Hardy Pence, LLC, P.O. Box 2548, Charleston, WV 25329 

/lct 

8 Payment should be sent to: U.S. Department of Labor, MSHA, Payment Office, P.O. 

Box 790390, St. Louis, MO 63179-0390. Please include docket and A.C. numbers. 

36 FMSHRC Page 3313

ADMINISTRATIVE LAW JUDGE ORDERS
36 FMSHRC Page 3314
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH ST., SUITE 443 

DENVER, CO 80202-2500 

OFFICE: (303) 844-5266/FAX: (303) 844-5268 

October 29, 2014 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), Docket No. PENN 2013-305 

Petitioner, A.C. No. 36-05466 

v. Docket No. PENN 2013-306 

 A.C. No. 36-05466 

EMERALD COAL RESOURCES, LP, 

Respondent. Mine: Emerald No. 1 

ORDER ASSESSING PENALTY

Before: Judge Miller 

These cases are before me on petitions for assessment of civil penalty filed by the 

Secretary of Labor, Mine Safety and Health Administration (“MSHA”) against Emerald Coal 

Resources, LP, pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. §§ 815 and 820. These dockets involve two proposed penalties of $20,000.00, 

for a total penalty of $40,000.00, for violations of section 105(c)(1) of the Act. The parties have 

filed joint stipulations addressing the penalty criteria. For reasons that follow, I assess a total 

penalty of $40,000.00. 

On June 6, 2013 this court issued an amended decision finding that Respondent had 

discriminated against two miners in violation of section 105(c)(1) of the Act. UMWA o/b/o Mark 

A. Franks & Ronald Hoy, 35 FMSHRC 1696 (June 2013) (ALJ). The Secretary was not a party 

to the discrimination proceedings and, as a result, civil penalties were not proposed prior to the 

hearing on the merits. Accordingly, no penalty was assessed in the decision and, rather, 

consistent with Commission Procedural Rule 44(b), the court referred the matter to the Secretary 

for the assessment of civil penalties. 29 C.F.R. § 2700.44(b). On July 18, 2013 the Secretary 

filed petitions for assessment of civil penalties for violations of section 105(c)(1) of the Act and 

the docket numbers listed above were assigned. Subsequently, on August 29, 2014, the 

Commission affirmed the decision that violations of section 105(c)(1) occurred. UMWA o/b/o 

Mark A. Franks & Ronald Hoy, 36 FMSHRC __, slip op. (Docket Nos. PENN 2012-250-D and 

PENN 2012-251-D) (Aug. 29, 2014). On September 29, 2014 Respondent filed a petition for 

review of the Commission’s decision to the U.S. Court of Appeals for the Third Circuit. On 

October 14, 2014 the parties filed joint stipulations aimed at resolving the outstanding penalty 

issues related to the dockets on review to the U.S. Court of Appeals. As part of the stipulations, 

the parties agree that the two $20,000.00 penalties proposed by the Secretary may be assessed in 

these cases so that the penalties may be joined with the underlying discrimination matters on 

review. Jt. Stip. ¶ 6. 

36 FMSHRC Page 3315
The principles governing the authority of Commission administrative law judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine act delegates to the Commission and its judges “authority to assess all civil penalties 

provided in [the] Act.” 30 U.S.C. § 820(i). The Act requires, that in assessing civil monetary 

penalties, the ALJ must consider ” six statutory penalty criteria which include the history of 

violations, the size of the operator, the negligence, gravity, the ability to continue in business and 

good faith abatement. 30 U.S.C. § 820(i). In keeping with this statutory requirement, the 

Commission has held that “findings of fact on the statutory penalty criteria must be made” by its 

judges. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 

1984). Once findings on the statutory criteria have been made, a judge’s penalty assessment for 

a particular violation is an exercise of discretion that includes a consideration of the penalty 

criteria and the deterrent purpose of the Act. Cantera Green, 22 FMSHRC 616, 620 (May 

2000). 

The parties have stipulated that the outcome of the proceeding before the Court of 

Appeals will ultimately control this matter, and that, to promote judicial economy and to 

facilitate the review of its case before the U.S. Court of Appeals, this court may proceed to 

impose the two $20,000.00 penalties sought by the Secretary in the above captioned proceedings. 

Jt. Stip. ¶ 6. Emerald agrees that, if the U.S. Court of Appeals finds that the violations of section 

105(c) should be upheld, then the two $20,000.00 penalties may be imposed. Jt. Stip. ¶ 13. The 

parties agree that the stipulations do not preclude any argument that the parties may make as to 

the underlying discrimination case before the U.S. Court of Appeals, and that once an order 

assessing penalties is issued it is Respondent’s obligation to seek review of the penalties in order 

for this matter to be joined with the matter currently pending before the U.S. Court of Appeals. 

Jt. Stip. ¶ 13. 

The parties, in asking the court to impose the two $20,000.00 penalties, have 

acknowledged that the penalties are based on the Secretary’s assignment of penalty points to the 

size of the controller, the size of the mine, the negligence, the gravity, and the history of 105(c) 

violations. Jt. Stp. ¶¶ 6-11. Moreover, Emerald agrees that the penalties as proposed will not 

affect its ability to continue in business. Jt. Stip. ¶ 12. Accordingly, each of the relevant penalty 

criteria have been addressed by the stipulations. 

Given the stipulations of the parties, along with the fact, that I have found that the mine 

violated section 105(c) in my earlier decision, I assess a $20,000.00 penalty for the violation of 

section 105(c) addressed in the Docket No. PENN 2013-305. Further, on the same basis, I assess 

a penalty of $20,000.00 for the violation of section 105(c) addressed in Docket No. PENN 2013-

306. The Respondent, Emerald Coal Resources, LP, is hereby ORDERED to pay the Secretary 

of Labor the sum of $40,000.00 within 40 days of the date of this decision. 

/s/ Margaret A. Miller

Margaret A. Miller 

Administrative Law Judge 

36 FMSHRC Page 3316
Distribution: 

Andrea Appel, U.S. Department of Labor, Office of the Solicitor, Suite 630 East – The Curtis 

Center, 170 S. Independence Mall West, Philadelphia, PA 19106 

R. Henry Moore, Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Ave., 

Pittsburgh, PA 15222 

36 FMSHRC Page 3317
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2536 

303-844-3577 FAX 303-844-5268 

December 2, 2014 

 

ORDER GRANTING INTERVENTION REQUEST

These cases are before me upon petitions for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), 

against Hecla Limited, 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”). These cases are set for hearing on 

February 24, 2015, in Coeur d’Alene, Idaho. On October 3, 2014, attorney Eric S. Rossman filed 

a letter stating that he represents Ron Barrett, Greg Hammerberg, Eric Tester, and Matt Williams 

(the “injured miners”) who were injured by a rock burst that occurred at Hecla Limited’s Lucky 

Friday Mine on December 14, 2011. Rossman stated that he sent the letter to inform the court 

that the injured miners seek to intervene in these cases pursuant to Commission Procedural Rule 

4(b)(1). 29 C.F.R. § 2700.4(b)(1). The cases involve, in part, orders of withdrawal issued by 

MSHA following its investigation of the rock burst. 

On October 9, 2014, at my request, the injured miners filed a more detailed letter setting 

forth the reasons why they wish to intervene in these cases and why they believe that they are 

entitled to intervene under the cited procedural rule. Attached to this letter was a statement 

signed by the four injured miners stating that they were miners on December 14, 2011, at the 

Lucky Friday Mine and that they suffered injuries from the subject rock burst. 

By order dated November 5, 2014, I asked the Secretary, Hecla, and the injured miners to 

file a short brief or statement setting forth their positions on the intervention request. I asked 

them to take into account my order in other Hecla cases (WEST 2012-760-M-A and WEST 

2012-986-M) in which I denied the request of a different miner to intervene. 

The Secretary and the injured miners filed responses in support of the intervention and 

Hecla filed a response opposing the intervention request. I grant the request of the injured miners 

to intervene in these cases subject to the conditions and limitations set forth below. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

HECLA LIMITED, 

 Respondent 

 CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2013-781-M 

A.C. No. 10-00088-318512-01 

Docket No. WEST 2013-782-M 

A.C. No. 10-00088-318512-02 

Lucky Friday Mine 

36 FMSHRC Page 3318
As stated above, I denied the request of another miner to intervene in different Hecla 

cases. Hecla Limited, 36 FMSHRC____, No. WEST 2012-760-M-A et al. (November 4, 2014). 

That miner was injured by a rock fall at the Lucky Friday Mine on April 15, 2011. My 

November 4, 2014, order is incorporated herein by reference. 

Rossman does not seek to intervene on behalf of the injured miners as a “representative 

of miners” as that term is used in the Mine Act and the Secretary’s regulations. Rather the 

injured miners seek to intervene in these Commission cases with Rossman as their 

representative. Commission Rule 4(b)(1) provides in pertinent part that “affected miners or their 

representatives shall be permitted to intervene [in Commission cases] upon filing a written notice 

of intervention . . . with the judge.” 29 C.F.R. § 2700.4(b)(1). Section 3(g) of the Mine Act 

defines a miner as “any individual working in a coal or other mine.” 30 U.S.C. § 802(g). The 

term “affected miner” has not been defined by Commission case law. The only guidance 

provided by the Commission is the preamble to Rule 4. Although it focuses upon Rule 4(b)(2), it 

clarifies the intent behind rule 4(b) as a whole.1

 

In my prior order, I relied upon a number of factors to deny the intervention request but I 

principally focused upon the fact that the miner seeking intervention was no longer employed by 

Hecla. As a consequence, he was no longer a miner exposed to the hazards of falling rock at the 

Lucky Friday Mine. The adjudication of the issues would not affect the safety and health of that 

miner. As stated in the preamble, an interest in the issues is an insufficient reason to intervene. 

 1

 The preamble states: 

The proposed rule added new procedures dealing with intervention and 

amicus curiae participation at the trial level. The Commission received a number 

of comments on these proposals and has modified the proposals. Paragraph (b)(2) 

provides that motions to intervene made by persons other than affected miners or 

their representatives shall be filed before the start of a hearing on the merits, 

unless the judge, for good cause shown, permits later filing. 

Some commenters suggested that the proposed criteria for intervention were too 

restrictive, and urged the Commission to permit intervention on the basis of an 

interest in the issues involved in a proceeding. The Commission has determined 

that interest in issues is too broad a criterion for intervention. Such a standard 

could serve to deprive the parties of control over the litigation and could 

encumber the Commission's simple administrative trial process. See MidContinent Resources, Inc., 11 FMSHRC 2399 (December 1989)(discussing 

criteria for non-party standing to appeal a Commission judge's decision to the 

Commission). In denying a motion to intervene, however, a Commission judge 

may alternatively permit the movant to participate in the proceeding as amicus 

curiae (§ 2700.4(c)). 

58 Fed. Reg. 12158, 12160 (Mar. 3, 1993). 

36 FMSHRC Page 3319
In the present cases, I find that the injured miners must be classified as “affected miners.” 

All the injured miners were employed by Hecla at the time of the roof fall and were allegedly 

injured by the roof fall. Three of four of the injured miners are currently employed as miners by 

Hecla. The Secretary contends that they are all affected miners. Under Rule 4(b)(1) affected 

miners “shall be permitted to intervene.” Although the fourth miner, Matt Williams, may not 

qualify as an affected miner on his own, given that Rossman represents him and he was injured 

in the same accident, I will permit him to intervene. 

Rossman represents all four miners in a state tort action brought against Hecla as a result 

of the accident. In the present cases, the Secretary’s counsel is experienced in representing the 

interests of miners in cases brought before the Commission under the Mine Act. The injured 

miners stated in their brief filed by Rossman on the intervention issue that the “information and 

testimony developed in the course of these proceedings are vital to pursuing the civil litigation.” 

Brief at 3. The injured miners and their representative must understand that the scope of these 

proceedings is narrow. The primary issues are whether Hecla violated the cited safety standards 

and, if so, the amount of the assessed civil penalty. Factors that I must consider in assessing a 

civil penalty include the “gravity” of the violations and the “negligence” of Hecla, as those terms 

are used in the Mine Act. I must also determine whether any violations were the result of Hecla’s 

“unwarrantable failure” to comply with the cited safety standards, as that term is used in the 

Mine Act. I am not directly charged with the responsibility of determining the cause of the rock 

fall or whether Hecla is accountable for the rock fall. 

Under Commission Procedural Rule 55, I am responsible for regulating the course of 

these proceedings. 29 C.F.R. § 2700.55. In the letter of October 9, 2014, the injured miners 

stated that they “will honor the procedures relating to these proceedings and any ruling of this 

court.” Letter at 2. In accordance with Rule 55, I am entering certain conditions and limitations 

on the participation of the injured miners, as follows: 

(1) Discovery – The injured miners, in their letter of October 9, 2014, state that they wish 

to intervene “in order to participate in and oversee the proceedings, discovery and submission of 

evidence and testimony.” Letter at 2. It is not clear how the injured miners will “participate” in 

discovery. Because they are intervenors, their representative will be entitled to a copy of written 

discovery responses served by Hecla in response to discovery submitted by the Secretary and 

copies of the responses served by the Secretary in response to discovery submitted by Hecla. 

Any participation in discovery beyond that will require my prior approval and will not be 

favored. 

(2) Sequestration – I require the sequestration of witnesses at my hearings because I must 

enter findings of fact. Sequestration is crucial because I must assess the credibility of witness 

testimony, which I cannot do if witnesses sit in the courtroom and listen to the testimony of other 

witnesses or discuss this testimony. As a consequence, if any party plans to call an injured miner 

to testify at the hearing, that miner will be subject to my usual rules of sequestration. He will not 

be permitted in the courtroom until he testifies, no other witnesses will be permitted to discuss 

their testimony with him until after the hearing is over, and he will not be permitted to discuss 

his testimony with anyone until the hearing is over. Counsel will be subject to the same 

restrictions concerning the discussion of testimony. 

36 FMSHRC Page 3320
 (3) Other Conditions – The injured miners state that they “have no intention of causing 

any unnecessary interference with the proceedings, but do wish to exercise their right to 

intervene and assist counsel for the United States and ensure the protection of their interests 

during the proceedings.” Letter at 2. In that spirit, I may find it necessary to enter other 

conditions upon the participation of the injured miners as these proceedings progress. 

For the reasons set forth above, Ron Barrett, Greg Hammerberg, Eric Tester, and Matt 

Williams are hereby PERMITTED TO INTERVENE in these cases. The injured miners and 

their representative must adhere to the Commission’s procedural rules. 

/s/ Richard W. Manning 

Richard W. Manning

Administrative Law Judge 

Distribution: 

Laura Bremer, Esq., Office of the Solicitor, U.S. Department of Labor, 90 7th Street, Suite 3-700, 

San Francisco, CA 94103-6704 

Laura E. Beverage, Esq., and Karen L. Johnston, Esq., Jackson Kelly PLLC, 1099 18th Street, 

Suite 2150, Denver, CO 80202-1958 

Eric S. Rossman, Esq., Rossman Law Group, PLLC, 737 N. 7th Street, Boise, ID 83702 

RWM 

36 FMSHRC Page 3321
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th STREET, SUITE 443 

DENVER, COLORADO 80202-2536 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

December 5, 2014 

ORDER DENYING POCAHONTAS’ REQUEST TO WITHDRAW

Before: Judge Miller 

These cases are before me upon notices of contest filed by Pocahontas Coal Company 

and petitions for assessment of a civil penalty under section 105(d) of the Federal Mine Safety 

and Health Act of 1977. On November 17, 2014 Pocahontas filed a request to withdraw. The 

Secretary opposed the request, but opted to not file a formal written response. For reasons that 

follow, I DENY Pocahontas’ motion. 

On September 30, 2014 the court requested that the Secretary provide the roof control 

and ventilation plans in place when five 104(e) orders1 that are contained in these dockets were 

issued, and identify the plan provisions that had allegedly been violated. Counsel for Pocahontas 

was copied on the email. Pocahontas objected to the Secretary’s submission of the requested 

materials and argued that the materials should only be presented to the court in the context of a 

hearing. On October 15, 2014 the court clarified, by email, that only the plan cover pages and the 

plan provisions which were alleged to have been violated were being sought from the 

1

 The orders at issue are Order No. 9002712, 9002713, 9002715, 7169717 and 3576153. 

The Secretary’s submission explained that Order Nos. 9002712 and 9002713 had been modified 

post-issuance to reflect violations of other standards, and were no longer alleged to be violations 

of the mine’s roof control plan. 

POCAHONTAS COAL COMPANY, INC., 

 Contestant, 

v. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Respondent 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

v. 

POCAHONTAS COAL COMPANY, INC., 

 Respondent. 

 CONTEST PROCEEDINGS 

Docket No. WEVA 2014-395-R 

Order No. 3576153; 12/19/2013 

Docket No. WEVA 2014-711-R 

Order No. 7169717; 2/10/2014 

Mine: Affinity Mine 

Mine ID: 46-08878 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 2014-1112 

A.C. No. 46-08878-353252 

Docket No. WEVA 2014-1160 

A.C. No. 46-08878-354868 

Mine: Affinity Mine 

36 FMSHRC Page 3322
Secretary. The court explained that requesting the materials is a practice that allows the court to 

prepare for hearing and help the parties narrow the issues. Further, if Pocahontas did not agree 

that the proper plans were submitted, it could advise the court and submit the plans that it 

believes were in place at the time the orders were issued. Finally, the court made clear that the 

submissions would not become part of the record at the time of submission, and that the parties 

would need to enter the plans into evidence at the hearing. On October 23, 2014 the Secretary, 

via email, submitted the requested materials to the court, with a copy sent to Pocahontas’ 

counsel. On November 3, 2014, Pocahontas submitted a response in which expressed its concern 

with the Secretary’s submission. Subsequently, on November 17, 2014, Pocahontas filed this 

request to withdraw in which it seeks to have the ALJ recused. 

Pocahontas requests that the undersigned judge withdraw as the presiding judge in these 

cases and argues that the judge improperly requested, and viewed, documents from the Secretary 

which are not part of the record, thereby placing herself in the “dual role as both an investigator 

and adjudicator.” Mot. 7. Rather, the judge should have reviewed the requested documents only 

in the context of a stipulation by the parties or a hearing where the documents could be properly 

introduced into evidence. In failing to do so, the presiding judge’s conduct evidenced bias, or at 

least the appearance of bias, and deprived Pocahontas of a fair and impartial hearing. In other 

words, Pocahontas filed this motion, seeking to have the ALJ withdraw, based upon a request, 

made to both parties, for a copy of the roof control plan that was alleged as the basis for a 

number of citations. Because that plan was sought, Respondent argues that it cannot now receive 

a fair and impartial hearing on the many citations included in these dockets. I disagree. 

Commission Procedural Rule 81, states that “[a] party may request a . . . Judge to 

withdraw on grounds of personal bias or other disqualification. A party shall make such a request 

by promptly filing an affidavit setting forth in detail the matters alleged to constitute personal 

bias or other grounds for disqualification.” 29 C.F.R. § 2700.81(b). In Medusa Cement Co., the 

Commission, in affirming a judge’s decision to not recuse himself, explained that, while the role 

of its judges’ is to adjudicate, and not litigate cases, the judges are active participants in the 

proceeding with a duty to conduct those proceedings in a manner that yields a just and true 

result. 20 FMSHRC 144, 148 (Feb. 1998) (citing Secretary of Labor on behalf of Clarke v. T.P. 

Mining, Inc., 7 FMSHRC 989, 993 (July 1985), and Lonnie Jones v. D&R Contractors, 8 

FMSHRC 1045, 1053 (July 1986)). The Commission further explained, citing its decision in 

Canterbury Coal Co., 1 FMSHRC 1311 (Sept. 1979), that while its judges are afforded 

“considerable leeway” in conducting proceedings and developing a record, the judge must not 

intervene so much that the parties are unable to develop their case. Id. 

The court has not displayed any personal bias or other grounds which would justify 

withdrawal, nor has there been any intervention that would hinder the parties in developing their 

case. Here, the only action taken by the court was to request that the Secretary provide the roof 

control and ventilation plans that he believed were in force at the time the 104(e) orders were 

issued, and identify the plan provisions alleged to have been violated. The request was made 

with the knowledge of Pocahontas. The court advised the parties that, should Pocahontas dispute 

what was submitted, it would be given ample time to submit the plans it believed were in place 

when the orders were issued. Further, the court clarified that the material would not become part 

of the record until it was either stipulated to, or introduced at hearing. The court has not engaged, 

36 FMSHRC Page 3323
and will not engage, in any decision making on the issue of what plans were in effect and which 

provisions were allegedly violated prior to a stipulation by the parties or a hearing where the 

plans are submitted into evidence. However, it is incumbent upon the court to utilize the powers 

afforded it to promote judicial economy by preparing for hearing and narrowing the issues. See

29 C.F.R. § 2700.55. The request for the plans relates to matters alleged in the orders issued by 

MSHA. By submitting the plans, the parties and the court are better able to understand what 

disputes may arise with regard to those plans, and how much time will be needed to hear 

arguments regarding the plans. I find that the arguments made by Pocahontas regarding the 

nature of the roof control plan and its use by the court are not only over-reaching but are 

histrionic. This is not a case of drama, but a case of fact, and each party has and will continue to 

have, the opportunity to present the facts so that the law may be applied as appropriate. 

A proceeding involving an alleged violation of a mine plan presents a unique situation 

with regard to what legal standard will be applicable when deciding whether a violation exists. 

Unlike a typical proceeding where a citation or order alleges a violation of a mandatory standard 

promulgated by the Secretary or statutory provision constructed by Congress, citations and 

orders involving mine plans allege violations of the actual provisions in the plan. The language 

of those provisions is proposed by the mine operator, and approved by MSHA. The Commission 

has explained that plan provisions are enforceable as mandatory standards. Martin County Coal 

Corp., 28 FMSHRC 247, 254 (Mar. 2011) (ALJ) (citing UMWA v. Dole, 870 F.2d 662, 671 

(D.C. Cir. 1989); Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 409 (D.C. Cir. 1976); Energy West 

Mining Co., 17 FMSHRC 1313, 1317 (Aug. 1995); Jim Walter Res., Inc., 9 FMSHRC 903, 907 

(May 1987). In order to properly prepare for this hearing, the court should know what legal 

standard the parties believe is at issue. While Pocahontas argues that the Commission judges 

should do no research or prepare for hearing, the court disagrees. Rather, it is in both the court’s 

and parties’ best interests for there to be some clarity as to what the legal standard is, or could be, 

prior to hearing and what issues might be litigated. The court need not, and has not, reached any 

conclusion regarding what standard will be applied. However, the court has conducted, and will 

continue to conduct, research into the provisions advanced by the parties. 

Judges listen closely, read carefully and research thoroughly, before issuing a reasoned, 

well-thought-out and impartial decision. Throughout the stacks of motions filed in these, as well 

as related cases, I have always listened, read and researched and intend to do so as the case 

proceeds. The fact that the Secretary was asked to produce, and the Respondent asked to 

comment on, a roof control plan, does not change that practice. Nor does it offer anything to the 

case except to narrow the issues and to present an opportunity for the court and the parties to 

understand what will be litigated and how much time that will take. Neither in intent or 

appearance has the Respondent been slighted or somehow been put at a disadvantage. If 

anything, it now has the advantage of having a better understanding of the allegations against it 

and can better prepare for those allegations. 

Here, the Secretary has provided what he alleges are the proper plans and cited 

provisions. Pocahontas, has not provided plans or provisions and, rather, has only raised 

concerns that some of the 104(e) orders did not specify which plan provisions were allegedly 

violated, that it needs to depose the issuing inspector to determine whether the Secretary’s 

submissions are accurate, and that the court should only review the plans and plan provisions on 

36 FMSHRC Page 3324
the record in the context of direct and cross examination testimony. While Pocahontas’ concerns 

are noted by the court, the court’s request was harmless. The materials submitted are being used 

only for purpose of preparing for hearing and initial prehearing research of the issues in this 

matter. The court is aware of fact that, in order for the Secretary to prove a violation of a mine 

plan, he must identify a mine plan provision that has allegedly been violated, establish that the 

provision allegedly violated is part of the approved and adopted plan, and demonstrate that the 

condition cited actually did violate the plan provision. Harlan Cumberland Coal Co., 20 

FMSHRC 1275, 1281 (Dec. 1998) (citing Jim Walter Resources, Inc., 9 FMSHRC 903, 907 

(May 1987). Nothing that the court has done relieves the Secretary of the burden that he will be 

required to satisfy at hearing, nor does it preclude Pocahontas from exercising its right to dispute 

the Secretary’s case and put on evidence to the contrary. Accordingly, Pocahontas’s motion to 

withdraw is DENIED. 

 /s/ Margaret A. Miller

Margaret A. Miller 

Administrative Law Judge 

Distribution: 

Benjamin Chaykin, Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nd 

Floor West, Arlington, Virginia 22209-2247 

Jason Nutzman, Dinsmore & Shohl LLP, 900 Lee St. Suite 600, Charleston, WV 25301 

Robert Huston Beatty, 215 Don Knotts Blvd., Suite 310, Morgantown, WV 26501 

36 FMSHRC Page 3325
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, N.W., SUITE 520N 

WASHINGTON, D.C. 20004 

December 12, 2014 

STAR MINE OPERATIONS, LLC, 

Contestant, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent. 

CONTEST PROCEEDING 

Docket No. WEST 2015-100-RM 

Written Notice No. 8834101; 09/25/2014 

Revenue Mine 

Mine ID 05-03528 

ORDER GRANTING SECRETARY’S MOTION TO DISMISS

This case is before me upon the Notice of Contest filed by Star Mine Operations (“Star 

Mine” or “the operator”) pursuant to section 105 of the Federal Mine Safety and Health Act of 

1977 (“Mine Act”), 30 U.S.C. § 815. Star Mine filed this contest case on October 24, 2014, to 

seek review of the pattern of violations (“POV”) notice that the Secretary of Labor (“Secretary”) 

issued to Star Mine pursuant to his rule implementing section 104(e), 30 U.S.C. § 814(e). 

I. Procedural Background 

On November 13, 2014, the Secretary filed a Motion to Dismiss, asking that Star Mine’s 

contest be dismissed with prejudice for lack of subject-matter jurisdiction. Thereafter, on 

November 24, 2014, Chief Administrative Law Judge Robert J. Lesnick assigned this contest 

case to me.1 Star Mine filed its Response in Opposition to the Secretary of Labor’s Motion to 

Dismiss on November 26, 2014.2 

On September 25, 2014, the Secretary issued Written Notice No. 8834101 to Star Mine. 

(Mot. to Dismiss at 1; Resp. in Opp’n at 3.) Because a POV notice is not a citation or order 

1

 The deadline to file a response in opposition was initially November 25, 2014. See 

29 C.F.R. § 2700.10(d). However, on November 24, 2014, Star Mine filed an unopposed motion 

asking for a one-day extension to file its response to the Secretary’s motion seeking dismissal. 

Commission Procedural Rule 55 grants Commission Judges broad powers to issue orders and 

procedurally manage the cases before them. 29 C.F.R. § 2700.55. The operator’s unopposed 

motion is GRANTED and its Response in Opposition is hereby ACCEPTED. 

2

 On December 3, 2014, the Secretary filed a motion seeking leave to file a reply to 

Star Mine’s response in opposition. According to the Secretary, such a reply will allow him to 

“meaningfully respond” to Star Mine’s “due process argument.” (Mot. for Leave at 1.) I need not 

address the Secretary’s motion for leave to file a reply because I have determined that I do not 

have jurisdiction in this case. See discussion infra Part III. 

36 FMSHRC Page 3326
issued under section 104, the Secretary contends that the text of the Mine Act does not give the 

Commission and its Administrative Law Judges jurisdiction to hear this case. (Mot. to Dismiss at 

1–4.) In support of his claim, the Secretary also argues that the Commission’s own rules provide 

“no procedure for contesting or answering contests of a pattern of violations notice or any other 

notice.” (Id. at 3.) Further, the Secretary highlights recent decisions from Chief Judge Lesnick 

and Administrative Law Judge Margaret Miller that dismissed contest cases involving POV 

notices for lack of subject-matter jurisdiction. (Id. at 3–4 (citing Brody Mining, LLC, 36 

FMSHRC 284, 287 (Jan. 2014) (ALJ), and Pocahontas Coal Co., 36 FMSHRC 1371, 1372–73 

(May 2014) (ALJ).)3

 Accordingly, the Secretary contends that this contest case should be 

dismissed with prejudice. 

In response, Star Mine notes that it sold the Revenue Mine to Fortune Minerals Limited 

(“Fortune”) earlier this year. (Resp. in Opp’n at 3–4.) Although MSHA is now issuing citations 

and orders to Fortune, the agency apparently “refuses to change the information available to the 

public, continuing to state that Star Mine is the operator of the mine, and therefore, responsible 

for the issuance of the present [section] 104(e) orders.” (Id. at 4.) Thus, Star Mine claims to have 

“an interest in having accurate information being publicly disseminated about its current 

ownership obligations.” (Id. at 5.) In Star Mine’s view, that interest requires a hearing under the 

Due Process Clause. (Id. at 5–8.) Moreover, the operator claims this contest case represents its 

only opportunity for relief before the Commission because Star Mine no longer owns or operates 

the Revenue Mine. (Id. at 5, 9.) Star Mine therefore argues it should be afforded a hearing and 

that MSHA should be ordered to correctly identify the operator of the Revenue Mine in its Data 

Retrieval System.4

 (Id. at 9.) 

II. Principles of Law 

A. Motion to Dismiss for Lack of Subject-Matter Jurisdiction

Although the Commission’s Procedural Rules do not specifically enumerate the grounds 

for a motion to dismiss for lack of subject-matter jurisdiction, the Federal Rules of Civil 

Procedure guide Commission Judges “as far as practicable” on procedural questions “not 

regulated by the [Mine] Act, [the Commission’s] Procedural Rules, or the Administrative 

Procedure Act.” 29 C.F.R. § 2700.1(b). Federal Rule 12(b)(1) allows parties to move for 

 3

 Although both ALJ cases are currently on appeal, the operator in Brody did not raise 

this jurisdictional issue before the Commission. Brody Mining, LLC, 36 FMSHRC 2027, 2033 

(Aug. 2014). However, the Commission has granted Pocahontas Coal Company’s petition for 

discretionary review of Judge Miller’s decision. See Unpublished Order Granting PDR dated 

June 25, 2014. 

4

 Star Mine also attached four exhibits to its response, which included: (1) a redacted 

copy of the sales contract between the operator and Fortune; (2) a printout of a legal identity 

report submitted to MSHA’s website that is dated March 10, 2014; (3) a printout from MSHA’s 

Mine Data Retrieval System that is dated November 26, 2014; and (4) a section 104(e) 

withdrawal order that was issued to Fortune and dated October 29, 2014. 

36 FMSHRC Page 3327
dismissal for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). When considering 

a motion to dismiss for lack of subject-matter jurisdiction, courts accept a plaintiff’s wellpleaded factual allegations as true and draw all reasonable inferences in the plaintiff’s favor. Ctr. 

for Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 588 (7th Cir. 2014); Leite v. 

Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). However, such plaintiffs bear the burden of 

establishing that jurisdiction is proper. Ctr. for Dermatology & Skin Cancer, 770 F.3d at 589;

Leite, 749 F.3d at 1117. Here, that burden is borne by Star Mine. 

B. Subject-Matter Jurisdiction Under the Mine Act

Section 105(d) of the Mine Act allows mine operators “to contest the issuance or 

modification of an order issued under section 104, or citation or a notification of proposed 

assessment of a penalty issued under [section 105(a) or (b)], or the reasonableness of the length 

of abatement time fixed in a citation or modification thereof issued under section 104 . . . .” 

30 U.S.C. § 815(d). As Judge Miller noted in her order dismissing a contest case involving a 

POV notice, “[n]otably, the section does not afford a right to contest written notices.” 

Pocahontas Coal Co., 36 FMSHRC at 1372; see also id. at 1372–74 (examining statutory text 

and legislative history to conclude that Congress intended to treat POV notices differently than 

citations and orders). 

III. Analysis and Order

Every adjudicatory body requires jurisdiction before it hears a case. As the party invoking 

the Commission’s authority in this matter, Star Mine bears the burden of demonstrating that the 

Commission has subject-matter jurisdiction under the Mine Act to hear the contest case before 

me. Although section 105(d) is the Commission’s jurisdictional touchstone, Star Mine has not 

explained how section 105(d) can be read to confer jurisdiction upon the Commission to hear 

this matter. Instead, the operator seizes on the unusual facts of this case to claim it will be denied 

due process if this case is dismissed. Because the operator sold its interest in the Revenue Mine, 

Star Mine contends it “has no other avenue of recourse before this Commission to challenge 

MSHA’s decision to issue a Pattern Notice” other than the contest case before me.5

 (Resp. in 

Opp’n at 9.) Star Mine therefore claims that it will be denied due process if not afforded a 

hearing before the Commission regarding the POV notice. (Id. at 3.) 

Star Mine seemingly hopes that I will ignore or contort the text of section 105(d) to 

accommodate its purported due process interests, but those interests are illusory.6

 Moreover, the 

5

 In contrast, the mine operators in Brody Mining and Pocahontas Coal Co. retained 

control of the mine. Because those operators ultimately received withdrawal orders under section 

104(e), they were free to challenge the POV notice after Commission jurisdiction attached to the 

resulting 104(e) withdrawal orders. See Brody Mining, 36 FMSRHC at 286–87; Pocahontas 

Coal Co., 36 FMSHRC at 1373–74. 

6

 Star Mine’s due process argument puts the cart before the horse: it assumes that it has 

(continued...) 

36 FMSHRC Page 3328
text of section 105(d) specifically limits the Commission’s jurisdiction—and excludes contests 

of notices, POV or otherwise. Even accepting as true the factual allegations included in Star 

Mine’s Notice of Contest and drawing all reasonable inferences in its favor, Star Mine simply 

has not met its burden of demonstrating that the Commission has jurisdiction over this case. In 

light of the text of section 105(d) and the persuasive analyses included in the recent decisions 

from Chief Judge Lesnick and Judge Miller, I conclude that I am without jurisdiction to hear a 

contest case regarding a POV notice. Accordingly, the Secretary’s motion to dismiss this case 

with prejudice is GRANTED. 

WHEREFORE, it is hereby ORDERED that Docket No. WEST 2015-100-RM be 

DISMISSED with prejudice. 

/s/ Alan G. Paez

Alan G. Paez 

Administrative Law Judge 

Distribution: 

Laura E. Beverage, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202 

Kristin R.B. White, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202 

Tyler P. McLeod, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer 

Boulevard, Suite 515, Denver, CO 80204 

/pjv 

6

 (...continued) 

an interest protected by the Due Process Clause. Yet, due process protections only attach to life, 

liberty, and property interests. See, e.g., Bryn Mawr Care, Inc. v. Sebelius, 749 F.3d 592, 598 

(7th Cir. 2014) (indicating that a party must establish a protected interest before a court will 

determine what process is due). Notwithstanding Star Mine’s claim that its “reputational” 

interest in “having accurate information about its current ownership obligations” entitle the 

operator to a hearing in this case (Resp. in Opp’n at 5–6, 8), Star Mine does not explain why its 

interests are cognizable under the Due Process Clause. See Bryn Mawr Care, Inc., 749 F.3d at 

598 (suggesting that reputational harms, alone, do not constitute interests protected by the Due 

Process Clause). Thus, I need not address the adequacy of the Commission’s procedure for 

contesting the POV notice in this case because Star Mine has not demonstrated an interest to 

which due process protections attach. 

36 FMSHRC Page 3329
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2536 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

December 17, 2014 

ORDER DENYING COMPLAINANT’S MOTION TO JOIN &

ORDER DIRECTING COMPLAINANT TO FILE 105(C)(3) CASE 

This case is before me on a complaint of discrimination filed pursuant to section 105(c) 

of the Federal Mine Safety and Health Act of 1977. On November 25, 2014, Complainant, Justin 

Greenwell, through his attorney, filed a motion to join Chris Oglesby as a respondent in this 

docket. On December 10, 2014, the Secretary, filed a response to Complainant’s motion. For 

reasons that follow, Complainant’s motion is DENIED and, pursuant to section 105(c)(3) of the 

Act, he is directed to file an action on his own behalf with the Commission. 

Complainant alleges that on March 19, 2014 he was threatened by Chris Oglesby, an 

hourly employee of mine, for notifying MSHA about issues with the mine’s respirable dust 

sampling. Two days later, on March 21st, Complainant filed a discrimination complaint with 

MSHA in which he named Oglesby, individually, as the person responsible for discriminatory 

action. The complaint did not name Armstrong Coal Company. The same day, MSHA contacted 

counsel for Complainant to advise him that, while Oglesby would continue to be listed on the 

complaint as the individual responsible for the discriminatory action, MSHA was changing the 

complaint to indicate that Armstrong was the entity against whom the complaint was filed. 

Counsel for Complainant objected to the change and, subsequently, MSHA advised 

Complainant’s counsel that there had been a misunderstanding, the complaint had not been 

changed, and a notification letter had been sent to Oglesby informing him that a complaint had 

been filed against him. 

On September 12, 2014 the Secretary, pursuant to section 105(c)(2), filed a complaint 

with the Commission against Armstrong alleging that the mine interfered with the exercise of 

protected activity by informing coworkers that Complainant had complained to MSHA, and 

soliciting coworkers to ostracize and harass Complainant due to his protected activity. Oglesby 

was not named as a respondent. On September 17, 2014, MSHA notified Complainant that it 

believed a violation of section 105(c) of the Act had occurred, and the Secretary had filed a 

complaint on behalf of Greenwell with the Commission. A copy of the letter was sent to 

Armstrong, but not to Oglesby. Thereafter, on November 25, 2014, Complainant, through his 

own counsel, filed the instant motion to join Chris Oglesby as a respondent. 

SECRETARY OF LABOR, MSHA, 

 on behalf of JUSTIN GREENWELL,

 Complainant, 

v. 

ARMSTRONG COAL COMPANY, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. KENT 2014-791-D 

MADI-CD 2014-11 

MADI-CD 2014-12 

Mine: Parkway Mine 

Mine ID:15-19358 

36 FMSHRC Page 3330
Complainant argues that section 105(c) allows for the filing of discrimination complaints 

against individuals and, since the filing of his original complaint, he has sought to hold Oglesby 

individually accountable for violating the Act. Complainant asserts that the Secretary’s case rests 

on the difficult to prove theory that the mine, in violation of the Act, encouraged Oglesby and 

others to harass Complainant as a result of his protected activities. Complainant, on the other 

hand, seeks to hold Oglesby personally liable for violating the Act. Complainant alleges that he 

“cannot obtain complete relief . . . unless Oglesby, the alleged perpetrator, is joined as a party 

herein.” Mot. 6. Specifically, Complainant asserts that, conceivably, liability could be found 

against Oglesby under Complainant’s theory, while no liability is found against Armstrong under 

the Secretary’s theory. As a result, Complainant asserts that Oglesby is required to be joined as 

an indispensable party under Federal Rule of Civil Procedure 19. In the alternative, Complainant 

argues that Oglesby should be permissively joined as a respondent under Federal Rule of Civil 

Procedure 20 given that Complainant’s right to relief arises out of the same occurrence raised by 

the Secretary under his theory of liability for Armstrong, and there are questions of law and fact 

common to both Armstrong and Oglesby. 

 The Secretary, in response, asserts that he is afforded wide discretion in his handling of 

105(c)(2) complaints and, based on his investigation of the alleged incident, has determined that 

Armstrong created a work environment that interfered with Complainant’s exercise of his rights 

under the Act. Further, Oglesby’s reaction “flowed from the environment . . . created by 

Armstrong ” and, as a result, the Secretary, in exercising his prosecutorial discretion, named 

Armstrong as the only respondent in this matter. Nevertheless, the Secretary acknowledges that 

Complainant is a party to this matter, that Oglesby is a “person” under the Act, and that the court 

may join Oglesby as a party. 

 Section 105(c) of the Act states that “[n]o person shall discharge or in any manner 

discriminate against or cause to be discharged or cause discrimination against or otherwise 

interfere with the exercise of the statutory rights of any miner . . . because such miner . . . has 

filed or made a complaint under or related to this Act, . . . or because of the exercise by such 

miner . . . of any statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1) (emphasis added). 

The Act defines “person” to include “any individual.” 30 U.S.C. § 802(f). Following a miner’s 

filing of a discrimination complaint with the Secretary and subsequent investigation into the 

complaint, the Secretary is afforded wide discretion in determining whether to pursue a 105(c)(2) 

case by filing a complaint with the Commission. Robert K. Rowland v. Sec’y of Labor, 7 

FMSHRC 630 (May 1985). 

The Act permits Complainant to bring an action against Oglesby individually as Oglesby 

is an “individual” and therefore falls within the Act’s definition of “person.” Given that section 

105(c) prevents any “person” from violating its provisions, it certainly applies to Oglesby, as 

well as to Armstrong in this case. While I find that Complainant may properly bring an action 

against Oglesby, joining him in the instant proceeding, brought by the Secretary pursuant to 

section 105(c)(2), is not the best mechanism to do so. 

It is clear that Complainant’s theory of liability differs from the Secretary’s. While 

Complainant seeks to impose liability only individually against Oglesby, the Secretary’s 

response makes clear that he intends to pursue his case against Armstrong as an entity, and not 

36 FMSHRC Page 3331
against Oglesby as an individual. The Secretary’s prosecutorial discretion affords him the ability 

to pursue a 105(c)(2) case in the way he sees fit, and the court cannot order him to pursue a 

particular case theory. Generally, the Secretary, upon completion of the investigation, sends a 

letter to Complainant stating whether a violation of section 105(c) has occurred. Here, following 

the investigation, the Secretary determined that the provisions of 105(c) had been violated and, 

pursuant to section 105(c)(2), filed a complaint with the Commission in which he named only 

Armstrong as a respondent. In declining to name Oglesby as a respondent, the Secretary 

effectively determined that, while the investigation revealed a violation of 105(c) under the 

Secretary’s theory, Complainant’s theory of individual liability did not amount to a violation. 

While the Secretary agrees that the court may join Oglesby in this matter, the court concludes 

that a better alternative would be for Complainant to pursue his claim of individual liability 

under section 105(c)(3) of the Act, which grants a miner the right to file an action on his own 

behalf following a determination by the Secretary that the provisions of 105(c) have not been 

violated. 30 U.S.C. § 815(c)(3). The Secretary’s refusal to pursue Complainant’s theory of 

individual liability, combined with the information contained in his response to the instant 

motion, are essentially a determination that no violation of 105(c) occurred in the manner alleged 

by Complainant. An action filed under section 105(c)(3) will allow Complainant to advance his 

own theory of the case, without the apparent interference of the Secretary, and pursue the 

complete relief he desires. Once the 105(c)(3) complaint is filed against Oglesby then it may be 

consolidated for purposes of hearing with this action against Armstrong. 

Accordingly, Complainant’s motion to join Chris Oglesby as a respondent in this 

proceeding is DENIED. I accept the Secretary’s response in this case as a denial of the 

discrimination complaint filed against Oglesby individually, and I advise Complainant to file a 

separate action against Oglesby, within 30 days of this order, pursuant to section 105(c)(3) of the 

Act. Complainant should attach a copy, or make reference to, this order so that the Commission’s 

docket office is made aware of the somewhat unusual circumstances of the action. Following the 

assignment of a docket number to that action, Complainant should notify the court so that it can 

take steps to have that matter consolidated for hearing with the above captioned docket. 

/s/ Margaret A. Miller

 Margaret A. Miller 

 Administrative Law Judge 

 

36 FMSHRC Page 3332
Distribution: 

Mary Sue Taylor, Office of the Solicitor, U.S. Department of Labor, 618 Church St., Suite 230 

Nashville, TN 37219-2456 

Noelle Holliday True, Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre 

Circle, Suite 375, Lexington, KY 40513 

Tony Oppegard, P.O. Box 22446, Lexington, KY 40522 

Wes Addington, Appalachian Citizens Law Center, 317 Main St., Whitesburg, KY 41858 

Justin Greenwell, 4620 Poole Mill Road, Crofton, KY 42217-8092 

Roger Stanley, Miners Representative, 740 Drake Creek Road, White Plains, KY 42464-9784 

Daniel Z. Zaluski, Armstrong Coal Company, Inc., 407 Brown Road, Madisonville, KY 42431 

Chris Oglesby, 275 S Bernard St., Nebo, KY 42441 

36 FMSHRC Page 3333
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

December 17, 2014 

ORDER

Before: Judge Moran 

In this discrimination proceeding brought under section 105(c)(3) of the Mine Act, 

Counsel for the Respondent, has asserted that, pursuant to the Order of the United States 

Bankruptcy Court, this matter and any other administrative proceeding, is to be stayed until the 

Bankruptcy Court lifts its stay. 

Per an Order issued by the United States Bankruptcy Court for the District of Nevada 

(“Bankruptcy Ct NV”) on September 3, 2014, which Order was issued under Chapter 15 of the 

Bankruptcy Code and “Pursuant to 11 U.S.C. §§ 1504, 1515, 1517, and 1521, recognizing 

Foreign Representative and Foreign Main Proceeding,” that court, at Paragraph 13(c) of its 

Order, stated: 

[A]ll persons and entities are enjoined from commencing or continuing, 

including the issuance or employment of process of, any judicial, 

administrative or any other action or proceeding involving or against the 

Debtors or their assets or proceeds thereof that are located in the United 

States, or to recover a claim or enforce any judicial, quasi-judicial, regulatory, 

administrative or other judgment, assessment, order, lien or arbitration 

award against the Debtors or their assets or proceeds thereof that are located 

in the United States. 

Counsel for Respondent, Veris Gold USA, Inc., takes the position that there is a 

uniqueness associated with the fact that this is a Chapter 15 Bankruptcy Proceeding. Working 

from that premise, Respondent contends that decisional law issued by the Federal Mine Safety 

and Health Review Commission (“Commission”) holding that stays under other Chapters of the 

Bankruptcy Code do not apply to Commission proceedings are not relevant to a Chapter 15 

DANIEL B. LOWE, 

Complainant 

v. 

VERIS GOLD USA, INC., 

 Respondent,

 DISCRIMINATION PROCEEDING 

Docket No. WEST 2014-614-DM 

WE-MD 14-04 

Jerritt Canyon Mill 

Mine ID 26-01621 

36 FMSHRC Page 3334
proceeding. The essence of Respondent’s argument is that because stays are not automatic under 

Chapter 15 and because the Bankruptcy Ct NV affirmatively issued its stay order, that order must 

be followed. 

 With great respect for the United States Bankruptcy Court for the District of Nevada, this 

Court concludes, for the reasons which follow, that the stay does not apply at this stage of this 

discrimination action. Chapter 15 is a new chapter added to the Bankruptcy Code which replaces 

section 304 of the Bankruptcy Code. The “Bankruptcy Basics” site for the U.S. Courts notes that 

Chapter’s purpose is “to provide effective mechanisms for dealing with insolvency cases 

involving debtors, assets, claimants, and other parties of interest involving more than one 

country.” http://www.uscourts.gov/FederalCourts/Bankruptcy/BankruptcyBasics/Chapter15.aspx

That site goes on to state that the objectives of Chapter 15 include providing “for the fair and 

efficient administration of cross-border insolvencies that protects the interests of all creditors and 

other interested entities, including the debtor.” Id. 

 In a December 3, 2014 email from Respondent’s Counsel to the Court and the 

Complainant, the Court was advised that there is anticipation that the Respondent will emerge 

from this bankruptcy in early 2015. Respondent also related that it views the Commission 

decision in MSHA v. Hidden Splendor Resources, Inc. as distinguishable, from this matter, 

chiefly on the basis that the Hidden Splendor matter involved a Chapter 11 bankruptcy. 

Respondent also sees a distinction in that stays are automatic under Chapter 11, but require an 

affirmative invocation for a stay under Chapter 15. 

Subsequently, on December 15, 2014, Respondent’s Counsel supplemented its position 

on this issue,1

 after seeking input from the law firm representing Veris in the bankruptcy matter. 

That information, provided in a “Memorandum Regarding Recognition of Foreign Main 

Proceeding in Chapter 15 Case and Application of the Automatic Stay” essentially reiterated the 

arguments made by Veris’ attorney in this discrimination proceeding. The law firm representing 

Veris in the bankruptcy matter emphasized in its memorandum that the stay order “operates as an 

injunction against all acts against a debtor on account of pre-petition debt[.]” Memorandum at 3 

(emphasis added). The Memorandum goes on to note that the Complainant’s action does not 

qualify as an exception to a stay, as it is not being brought by a governmental unit. It adds that 

the Complainant’s sole remedy was to have filed a proof of claim in the foreign main proceeding 

in Canada, which it describes as “an exclusive process by which creditors could assert claims 

against Debtors.”2 Id. at 4-6. Finally, the Memorandum suggests that moving forward in the 

discrimination proceeding runs the risk that it could be deemed void ab initio. 

 1

 It is noted that Respondent’s Counsel in this discrimination proceeding is not the 

Counsel for Veris Gold USA, Inc. in the Chapter 15 Bankruptcy proceeding. 

2

 While not reflective of the basis for this Order, it is noted that Complainant could not 

have been properly served as the service was made to “Danny Lowe, Federal Mine Safety and 

Health Review, Commission Chief Administrative Law Judge Robert J. Resnick” without any 

other identifying information. Also, the Chief Judge is Robert J. Lesnick. 

36 FMSHRC Page 3335
Complainant, Daniel B. Lowe, acting pro se, has expressed, as the Court construes his 

arguments, that the “Commission has consistently held that MSHA proceedings are not subject 

to the automatic stay bankruptcy provisions of section 362. Sec'y of Labor o/b/o Michael L. Price 

and Joe John Vacha v. Jim Walter Resources, Inc., 12 FMSHRC 1521, 1528-30 (August 1990); 

Sec'y v. L. Kenneth Teel, 13 FMSHRC 1915, 1916-17 (December 1991) (ALJ) [and that other 

cases support that discrimination cases may go forward despite a bankruptcy action citing] 

Midcontinent Resources Inc., 14 FMSHRC 882 (May 21, 1992). Complainant contends that 

“[e]nforcement proceedings before the Federal Mine Safety and Health Review Commission 

brought by the Secretary of Labor under section 105(c)(2) of the Mine Safety Act come within a 

statutory exception to the automatic stay provisions of the Bankruptcy Act.” Mr. Lowe adds 

that [w]hen actions are brought under the provisions of section 105(c)(2) of the Mine Safety Act, 

this is an exercise of police and regulatory powers which places this proceeding within the 

section 362(b)(4) exemption to the automatic stay,” [citing NLRB v. Evans Plumbing Company, 

639 F.2d 291 (5th Cir. 1981); In re Bel Air Chateau Hospital, Inc., 611 F.2d 1248 (9th Cir. 

1979), and In the Matter of Shippers Interstate Service, Inc., 618 F.2d 9 (7th Cir. 1980).] On the 

basis of those contentions, Complainant asserts that his action should receive similar treatment. 

Daniel Lowe email, December 7, 2014. 

In response to Respondent’s subsequent submission, Mr. Lowe adds that as he is 

“seeking relief in this action b[r]ought before and through the authority of the Federal Mine 

Safety and Health Review Commission under Section 105(c) of the [1977 Mine Act],” only the 

Commission can adjudicate that action and that the bankruptcy proceeding cannot dilute or 

reduce his rights under the Mine Act. Daniel Lowe email, December 16, 2014. 

Discussion 

The Commission has addressed matters involving the intersection of Mine Act and 

Bankruptcy actions in Sec'y of Labor o/b/o Michael L. Price and Joe John Vacha v. Jim Walter 

Resources, Inc., 12 FMSHRC 1521, 1528-30 (August 1990), (“Price & Vacha”) cited above. 

There, it held that the matter fell “within the exceptions to the automatic stay provisions of the 

Bankruptcy Code,” citing the “governmental unit” exception of Bankruptcy Code section 

362(b)(4). It added that the case was “brought by the government, through the Secretary, to 

effectuate and protect the rights secured by section 105(c)(1) of the Mine Act [and that] [t]his is 

the kind of ‘police or regulatory’ action covered by the exception to the automatic stay.” Last, 

the Commission took note that “[s]ection 362(b)(5) also excepts from automatic stay 

‘enforcement of a judgment, other than a money judgment, obtained in an action or proceeding 

by a governmental unit’s police or regulatory power . . . [and that the] Courts have recognized 

that adjudicatory bodies presiding over a governmental ‘police or regulatory’ action may enter a 

money judgment against a respondent-debtor but may not permit collection of that pecuniary 

judgment in an enforcement action.” (emphasis in original).3

 

 3

 The Court has concluded that Midcontinent Resources Inc., 14 FMSHRC 882 (May 21, 

1992), and Sec'y v. L. Kenneth Teel, 13 FMSHRC 1915, 1916-17 (December 1991) (ALJ) are not 

useful to the resolution of this issue. However, beyond Price & Vacha, the Commission has 

consistently held that the automatic stay provision does not apply. Sec. v. Hidden Splendor 

Resources, Inc., 2013 WL 3759789, June 6, 2013. 

36 FMSHRC Page 3336
 In determining that this matter should go forward, the Court’s decision is based upon the 

following observations. Review of the section of the Mine Act involved here, section 105(c)(3), 

evidences Congress’ clear intent that a miner’s right to bring his own action is to be recognized, 

notwithstanding the Secretary’s determination not to go forward under section 105(c)(2). Indeed, 

Congress directed that such 105(c)(3) proceedings are to be “expedited.” There is no hint in the 

language employed in the (c)(3) provision that the miner’s option to proceed in his own behalf is 

to be viewed as a diminished right vis-à-vis a discrimination action brought by the Secretary. 

In addition, as with Price & Vacha, this determination does not tread upon the collection 

of any monies. Mr. Lowe has not yet had his day in court. Unless and until he prevails in his 

105(c)(3) action, there can be no monetary compensation available to him. Anyone reading 

Chapter 15, or any other Chapter of the Bankruptcy Act, realizes that its focus is upon claims 

against debtors or their assets. Veris Gold is not a debtor at this stage of this Mine Act 

discrimination proceeding. Accordingly, continuing with this discrimination claim does not 

threaten such assets at this juncture.4 Given that it is expected that Veris Gold will have emerged 

from this bankruptcy by the spring of 2015, concerns about interference with the Bankruptcy 

Court’s authority over its assets are illusory and, in any event, this Court, consistent with 

Commission case law, would not address any collection issue as long as the bankruptcy 

proceeding is active. 

When balanced against the potential harm to Mr. Lowe’s exercise of his Congressionally 

afforded right to pursue his discrimination claim, including the risk of faded memories or 

witnesses becoming unavailable, the Court construes the language of section 105(c)(3) to be 

within the spirit of the exception to the stay provision and therefore concludes that the matter is 

not foreclosed by the Bankruptcy Court’s stay. 

The parties are directed to participate in a conference call on December 19, 2014 at 6 

p.m. EST, (3 p.m. PST) and to confirm this via email to the Court. 

/s/ William B. Moran

 William B. Moran 

 Administrative Law Judge 

 4

 This observation means that the specter raised by the Respondent, that proceeding with 

the Mine Act claim runs the risk of it becoming void ab initio, does not apply. First, the 

Bankruptcy Court could not void a proceeding brought under the Mine Safety and Health Act. At 

most, the Bankruptcy Court could void a monetary award. Second, as noted, this proceeding is a 

long way from such a possible development and if Veris Gold were still in bankruptcy at that 

point, no order against its assets would be issued by this Court until the Bankruptcy Court 

allowed that to occur. 

36 FMSHRC Page 3337
Distribution: 

 

David M. Stanton, Esq., Goicoechea, DiGrazia, Coyle & Stanton, Ltd., P.O. Box 1358, 530 

Idaho Street, Elko, Nevada 89801 

Daniel Lowe, P.O. Box 2608, Elko, NV 89803 

36 FMSHRC Page 3338
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

December 19, 2014 

 

ORDER

Before: Judge Moran 

 The Secretary has filed a motion to limit the Respondent’s utilization of the discovery 

vehicle of written interrogatories to 25 (twenty-five) such inquiries (“Motion”). Initially, the 

Respondent filed 64 interrogatories and, with the Court’s urging to see if the dispute could be 

resolved, that number was reduced to 39. The Secretary, believing the reduced number 

continuing to be excessive, filed the present motion. For the reasons which follow, the Court 

concludes that, consistent with the longstanding limit of 25 interrogatories under the Federal 

Rules of Civil Procedure, a party is presumptively limited to 25 questions in Mine Act litigation. 

Any party seeking more than the presumptive limit may be permitted to ask additional questions, 

but only after first applying to the Court for such relief and presenting the reasons justifying the 

request. After the opposing party has had an opportunity to respond, the Court will issue a ruling 

as to each requested additional question. This Order is being issued, in part, because Commission 

case law on this subject is sparse. 

Background 

Initially, it must be said that facts surrounding this matter do not appear to be 

exceptionally complex. Involving two section 104(d) orders, the first, citing 30 C.F.R. § 56.3200, 

asserts finding that “[t]he south east pit face was found to be undermined. The pit was evaluated 

to have a 30 foot wide X 15 foot high area undermined 2 1⁄2 foot under the face. A vertical area 

above the affected area was evaluated to be 30 foot high to the catch bench. Multiple loader 

tracks and dig marks at the face toe and wall were observed. This condition creates a fall of 

material hazard. Kirk Fenoff, Owner engaged in aggravated conduct by knowing that miners had 

been loading from the pit high wall for periodically a two month period time. Mr. Fenoff has not 

gone to the pit in two months to examine the high wall for unsafe conditions.” Order No. 

8717168. The cited 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 affected area. 

Until corrective work is completed, the area shall be posted with a warning against entry and, 

when left unattended, a barrier shall be installed to impede unauthorized entry.”

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

KIRK FENOFF & SON EXCAVATING, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. YORK 2014-28M 

A.C. No. 43-00490-335673 

Forest & Stream Gravel 

36 FMSHRC Page 3339
 With the second Order, No. 8717169, arising out of the same facts, it repeated the 

narrative of the first Order, but cited 30 C.F.R. § 56.3401, which provides that “Persons 

experienced in examining and testing for loose ground shall be designated by the mine operator. 

Appropriate supervisors or other designated persons shall examine and, where applicable, test 

ground conditions in areas where work is to be performed prior to work commencing, after 

blasting, and as ground conditions warrant during the work shift. Highwalls and banks adjoining 

travelways shall be examined weekly or more often if changing ground conditions warrant.” 

The Discovery Dispute 

 Per the Court’s request following the parties’ inability to resolve the dispute over the 

permitted number of interrogatories, the Secretary filed the instant Motion to Limit Respondent’s 

Discovery Pursuant to F.R.C.P. 33. That provision from the Federal Rules states: 

Unless otherwise stipulated or ordered by the court, a party may 

serve on any other party no more than 25 written interrogatories, 

including all discrete subparts. Leave to serve additional interrogatories may be 

granted to the extent consistent with Rule 26(b)(2). 

Rule 33(a)(1) Interrogatories to Parties 

 As noted, Respondent initially presented 64 interrogatories. Beyond that, the Secretary 

represents that the Respondent intends to depose the Inspector who issued the Orders. Motion at 

2. 

The Secretary acknowledges that interrogatories and other forms of discovery are 

permitted under the Commission’s Procedural Rules, 29 C.F.R. Part 2700. (“Rules”). However, 

those Rules, while recognizing the right to obtain discovery of any relevant, non-privileged 

matter that is admissible evidence or appears likely to lead to the discovery of admissible 

evidence, also temper that right by providing that, upon motion, a party or a person from whom 

discovery is sought may seek to have the judge, for good cause shown, limit discovery to prevent 

undue delay or to protect a party or person from oppression or undue burden or expense. 29 

C.F.R. § 2700.56(c). As the Secretary points out, that limitation on discovery is made in the 

context of the express statement about the rules’ construction that they are intended “to secure 

the just, speedy and inexpensive determination of all proceedings.” 29 C.F.R § 2700.1(c). Id. at 

3. 

The Secretary makes it plain that its argument is not directed at any particular questions 

among the 39 interrogatories. Rather, its contention is that exceeding the Federal Rules’ 

limitation of 25 interrogatories is per se excessive, asserting that “[a]ny interrogatories in excess 

of twenty five are [inherently] oppressive and create an undue burden on the Secretary in light of 

the limited facts at issue in this docket.” Id. In seeking to limit the Respondent to 25 

interrogatories, the Secretary also notes that there is guidance in construing the Rules which 

provides that “‘[o]n any procedural question not regulated by the Act, these Procedural Rules, or 

the Administrative Procedure Act (particularly 5 U.S.C. 554 and 556), the Commission and its 

judges shall be guided so far as practicable by the Federal Rules of Civil Procedure...’ [citing] 

36 FMSHRC Page 3340
30 C.F.R. § 2700.1(b).” Id. In turn, the Secretary notes that the applicable Federal Rule of Civil 

Procedure, F.R.C.P. 33, states “unless otherwise stipulated or ordered by the court, a party may 

serve on any other party no more than 25 written interrogatories, including all discrete subparts. 

F.R.C.P. 33(a)(1).” Id. 

Adding context to its argument, the Secretary reiterates that the two orders, arising out of 

the same essential facts, are of “relative factual simplicity” and that the Respondent’s discovery 

plans include deposing its witness on the same matters.1 

 Anticipating a contention by the Respondent, that Commission Rule 56(b) allows parties 

to discover any relevant, non-privileged matter that is admissible evidence or appears likely to 

lead to the discovery of admissible evidence and therefore implicitly rejects the FRCP limitation 

on the number of interrogatories, the Secretary observes that Rule 56 speaks to the scope of 

permissible discovery, not the quantity of questions permitted by interrogatories. The Court 

agrees with the Secretary’s interpretation.2 

 In its Response to the Motion,3 Respondent’s Counsel “strongly takes issue with the 

Secretary’s allegation that [it] is in any way abusing the discovery process, imposing an undue 

burden on the Secretary, or frustrating the expeditious resolution of this matter.” Response at 2. 

Respondent, apparently with no priority among its present 39 interrogatories, believes that the 

Secretary should have answered the first 25 of those interrogatories, with the burden then falling 

on the Respondent to compel answers to the unanswered remainders. Not that answering the first 

25 would have satisfied the Respondent, because it believes that answers to all of its 

interrogatories “are essential . . . to the just and speedy determination of this matter.” Id. 

 1

 The Secretary also notes that courts have observed that using both interrogatories and 

depositions, though allowed, can be a source for oppression. Schotthofer v. Hagstrom Const. Co., 

23 F.R.D. 666 (S.D. Ill. 1958). 

 

2

 Accordingly, this Court takes a different view from that expressed in GTI Capital 

Holdings, 23 FMSHRC 555 (ALJ 2001). In that case, another judge saw the respective burdens 

differently. While noting that Rule 56(c) permits a judge to limit discovery to prevent undue 

delay or to protect a party from oppression or undue burden or expense, that judge concluded 

that Federal Rule 33 does not apply to Commission proceedings and that a party must file a 

motion under Rule 56(c) to so limit discovery. It is true that although the Federal Rules do not 

apply to Commission proceedings, as noted, where a question is not regulated by the 

Commission’s Rules, the Federal Rules of Civil Procedure are, where practicable, intended to be 

a source of guidance. Rule 2700.1(b). The difference between this Court and the view expressed 

in GTI Capital Holdings is one of the guidance of Rule 33 and upon which party should bear the 

burden of establishing that more questions should be permitted. In this Court’s view, that burden 

should be on the party seeking to exceed the 25 question limitation. 

3

 Respondent’s Response incorrectly lists the docket in this matter as WEST 2014-103-

M. That docket number involves an entirely different respondent and is not related to this matter 

in any way. However, the Respondent is the counsel for that other docket. 

36 FMSHRC Page 3341
The Respondent, while acknowledging that discovery, as identified under Rule 

2700.56(a), may be limited per Rule 2700.56(c), asserts that it is up to the party seeking to limit 

such discovery to establish good cause for such limitations. Sec’y of Labor v. Newmont Gold 

Co., 18 FMSHRC 1304, 1305 (Jul. 10, 1996) (“Newmont Gold”).4

 The Court believes that the 

Respondent’s arguments are misguided. This dispute is not about the scope of discovery and 

consequently the related argument of good cause for limiting discovery is not material.5

 

The Secretary’s objections, for now, deal with the distinct issue of the number of 

interrogatories. When the Respondent actually does speak to the issue at hand, it contends that 

the Commission’s Rules do address interrogatories and apparently takes the position that because 

interrogatories are listed among other discovery tools, there is no need to consult with the 

Federal Rules of Civil Procedure. The Court does not share the Respondent’s view of the allencompassing nature of section 2700.58 and its suggestion that the provision closes the door on 

the need to look outside of its words. Respondent then repeats its contention that the Secretary 

should have at least answered 25 of its interrogatories, subject only to raising objections to those 

25. The problem with this assertion is that the Respondent never advised the Secretary to only 

answer the first 25, nor did it identify any particular 25 among the 37 (or 39, depending upon 

which party correctly added the number above 25), nor did it identify any particular 25 

interrogatories among the 64 interrogatories it originally propounded. 

 Last, the Respondent, who is at least consistent, completes its response with arguments 

that are not germane to the present issue by noting that as “the Secretary has the burden of proof 

in this action, it is clearly within Respondent’s purview to assess and question the written 

documentation that the Secretary asserts to support the citations prior to a deposition.” 

Respondent adds, for good measure, that “the time and costs associated with taking depositions 

on the subject Orders without the benefit of written discovery responses would far outweigh the 

costs associated with written discovery, which Respondent could utilize to clarify and narrow the 

scope of the questions that it intends to ask the inspector during the deposition.” Response at 5. 

 4

 The decision of the administrative law judge in Newmont Gold did not deal with the 

number of interrogatories allowable. Instead, that decision’s focus was upon the scope of 

discovery and whether depositions would be permitted for certain high level agency officials. In 

resolving that dispute, the judge in Newmont Gold balanced section 2700.56(b) allowing 

discovery of any relevant, non-privileged matter that is admissible evidence or appears likely to 

lead to the discovery of admissible evidence against section 2700.56(c) which empowers a judge, 

for good cause shown, to limit discovery in order to prevent undue delay or to protect a party or 

person from oppression or undue burden or expense. Thus, this Court, apart from the nonbinding nature of a fellow administrative law judge’s rulings on other judges’ determinations, 

concludes that Newmont Gold is not pertinent. 

5

 From that incorrect starting point, Respondent turns to a series of arguments that are 

also not pertinent to the present issue, including the risk of being exposed to a pattern of 

violations charge and the contention that discovery is not limited by the size of a proposed 

penalty. Simply stated, these are not material to the present issue. Because several of the 

Respondent’s contentions spring from similar incorrect premises, they are not specifically 

addressed. 

36 FMSHRC Page 3342
The Court’s Determination 

From the foregoing discussion it should be clear both that the issue to be decided is 

narrow and the Court’s perspective on its resolution. The Commission’s Procedural Rules do not 

speak to the number of interrogatories and, because of that silence, consultation with section 

2700.1(b) is entirely appropriate. 

Since 1993 the Federal Rules have reflected the determination that interrogatories should 

be limited to 25 without leave of court. As reflected in the following representative decisions, the 

resolution for this issue has been clearly articulated: Chudasama v. Mazda Motor Corp. 123 F.3d 

1353 (11th Cir. 1997), Walker v. Lakewood Condominium Owners Assn, 186 F.R.D. 584 (Dist Ct 

C.D. Ca. May 26, 1999), observing that “Rule 33(a) expressly forbids a party from serving more 

than 25 interrogatories upon another party ‘[w]ithout leave of court or written stipulation.’ Rule 

33(a) was amended to include the numerical limit in 1993. The Rules' Advisory Committee 

Notes for the 1993 amendments further emphasize that ‘[t]he purpose of this revision [was] to 

reduce the frequency and increase the efficiency of interrogatory practice’ since ‘the device can 

be costly and may be used as a means of harassment.’ See Advisory Committee Note to 1993 

Amendment to Rule 33; Capacchione v. Charlotte–Mecklenburg Schools, 182 F.R.D. 486, 492 

(W.D.N.C.1998); Safeco of America v. Rawstron, 181 F.R.D. 441, 443 (C.D.Cal.1998).” In 

Safeco v. Rawstron, 181 F.R.D. 44, (CD Ca. May 18, 1998) that court noted that “[t]he numerical 

limit was added in 1993. Before then, courts acknowledged that ‘sheer numerosity is not an 

objection.’Compagnie Francaise d'Assurance Pour le Commerce Exterieur, 105 F.R.D. 16, 42 

(S.D.N.Y.1984). As the Advisory Committee explained, ‘[t]he purpose of this revision is to 

reduce the frequency and increase the efficiency of interrogatory practice.’ See Advisory 

Committee Note to 1993 Amendment to Fed.R.Civ.P. 33, 146 F.R.D. 675, 675 (1993). The 

amendment was based upon a recognition that, although interrogatories may be a valuable 

discovery tool, ‘the device can be costly and may be used as a means of harassment....’ Advisory 

Committee Note, 146 F.R.D. at 675. ‘The aim [of the numerical limit] is not to prevent needed 

discovery, but to provide judicial scrutiny before parties make potentially excessive use of this 

discovery device.’ Advisory Committee Note, 146 F.R.D. at 676.” 

This Court takes the same perspective as those courts. A party seeking to present more 

than 25 interrogatories bears the burden of demonstrating a particularized need for each 

additional interrogatory beyond the permitted maximum of 25. In this instance the Respondent 

needs first to identify the 25 interrogatories it wants answered. The Secretary has no obligation to 

respond until the 25 are identified. If the Respondent wants to present additional interrogatories, 

it will need to present those questions to the Court, along with the justification for each one. 

Following that, the Secretary will have an opportunity to respond and the Court will then issue 

its ruling. 

So Ordered. 

/s/ William B. Moran

William B. Moran 

Administrative Law Judge 

36 FMSHRC Page 3343
Distribution: 

 

Daniel McIntyre, Esq., US Department of Labor, Office of the Solicitor, 1999 Broadway, 

Suite 800, Denver, CO 80202-5708 

Mark N. Savit, Esq., Ross J. Watzman, Esq., Jackson Lewis LLP, 950 17th Street, Suite 2600 

Denver, CO 80202 

36 FMSHRC Page 3344
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2536 

TELEPHONE: 303-844-3577 / FAX: 303-844-5268 

December 23, 2014 

ORDER GRANTING, IN PART, HECLA’S MOTION 

FOR PARTIAL SUMMARY DECISION

Appearances: Susan J. Eckert, Esq., Santarella & Eckert, LLC, Littleton, Colorado, for 

Petitioner; 

Laura Beverage, Esq., and Karen Johnston, Esq., Jackson Kelly PLLC, 

Denver, Colorado, for Respondent 

Before: Judge Manning 

This Compensation Proceeding is before me pursuant to section 111 of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Act”), upon an application for 

compensation filed by the United Steel Workers, Local 5114 (“USW”) on behalf of miners, 

against Hecla Limited. On November 14, 2014 Hecla and USW filed simultaneous motions for 

partial summary decision in this matter. On October 29, 2014, I issued a decision concerning the 

contest of the withdrawal orders related to this matter, WEST 2012-353-RM and WEST 2012-

354-RM. Hecla Limited, 36 FMSHRC __, slip op., 2014 WL 5811359 (Oct. 2014). With the 

parties’ agreement, the record from that hearing is hereby incorporated by reference in this 

proceeding.1

I. BACKGROUND 

On November 16, 2011, a fall of ground occurred in the Lucky Friday Mine. At 2:25 a.m. 

that same day, MSHA issued Order No. 8605614 pursuant to section 103(j) of the Act. The order 

identified the affected area as the “54 Ramp from the 5700 intersection from the spray chamber 

cut out to the down ramp of the old day box cut out and the 5900 main haulage from 100 feet 

from the intersection of the lateral on the 5900 level to 30 feet before the chevron.” Ex. G-1 at 1-

2. At 1:05 p.m., MSHA issued modification No. 8605614-01, modifying Order No.

1

 I will reference Respondent’s exhibits from the July 29-30, 2014 hearing as “Ex. R-X” 

and the Secretary’s exhibits from that hearing as “Ex. G-X.” References to that transcript shall be 

“Tr.” 

UNITED STEELWORKERS LOCAL NO. 

5114, ON BEHALF OF MINERS, 

 Applicant 

v. 

HECLA LIMITED, 

 Respondent 

 COMPENSATION PROCEEDING 

Docket No. WEST 2012-466-CM 

Lucky Friday Mine 

Mine ID 10-00088 

36 FMSHRC Page 3345
8605614 to a section 103(k)2

 order that allowed miners to begin repairs of the affected area, 

excluding the 54 ramp area.3

 

On November 20, 2011, MSHA issued modification No. 8605614-03 to permit the 

installation of three stress gauges in the 5900 main haulage drift.4

 The 5900 haulage drift was the 

primary access to the active mining area of the Mine at this time. The Lucky Friday Mine is a 

deep mine; the 5900 level is 5900 feet below the surface. The stress gauges were intended to 

monitor changes in pressure that could lead to a fall of ground. Modification No. 8605614-055

required Hecla to monitor the stress gauges on a shift to shift basis.6

2

 Section 103(k) of the act states: 

In the event of any accident occurring in a coal or other mine, an 

authorized representative of the Secretary, when present, may issue such orders as 

he deems appropriate to insure the safety of any person in the coal or other mine, 

and the operator of such mine shall obtain the approval of such representative, in 

consultation with appropriate State representatives, when feasible, of any plan to 

recover any person in such mine or to recover the coal or other mine or return 

affected areas of such mine to normal. 

30 U.S.C. § 813(k). 

3

 On November 17, 2011, MSHA also issued modification No. 8605614-02 to allow 

Hecla to scale, bolt, and repair through the fall at the 5900 haulage way and the 5700 sublevel of 

the 54 ramp. 

4

 On December 2, 2011, MSHA issued modification No. 8605614-04 to allow the mine to 

restore utilities through the 5900 drift where the fall occurred. 

5

 Originally, Modification No. 8605614-05 was issued as a second Modification No. 

8605614-03. MSHA issued Modification No. 8605614-06 to redress this problem. 

6

 Modification No. 8605614-05 states, in pertinent part: 

This modification is to allow limited travel through the affected area of the 

5900 main haulage and of the 54 ramp at the 5700 level. 

This modification is based upon no movement of the affected area has 

occurred since monitoring began (about four days) after shotcrete and bolting 

following the mine’s level three bolting plan were followed. Stress monitors 

indicate the area is d[i]stressed as compared to other active areas of the mine. 

This action is to allow very limited activities utilizing the 5900 main 

haulage based upon the temporary repairs already conducted by the mine until the 

engineered culvert arrives and more permanent repairs are made. 

Upon arrival of the culvert from the manufacturer, the mine will stop work 

to install the culvert and only those miners working on the culvert will travel in 

the affected area. 

(continued...) 

36 FMSHRC Page 3346
MSHA approved Hecla’s proposal to install a steel liner (culvert) in the affected area of 

the 5900 haulage drift. The steel liner was intended to protect miners in that area from any fall of 

ground. On December 14, 2011, at approximately 7:40 p.m., a rockburst occurred in the 5900 

pillar, injuring seven miners working to install the steel liner. MSHA issued Order No. 8605622,7

a section 103(j) order that removed all miners working in the 5900 main haulage. Order No. 

8605622 encompassed all underground areas of the mine including the area affected by Order 

No. 8065614. On December 15, 2011, MSHA issued modification No. 8605622-01, modifying 

Order No. 8605622 to a section 103(k) order that required the operator to obtain prior approval 

for all actions taken to recover and restore operations anywhere in the Mine.8 

This modification is based upon the mine will conduct two daily surveys 

at the start and end of the 1st shift to determine whether movement is occurring at 

the survey stations of the 5900 main haulage near the chevron. 

This modification is based upon no foot travel will occur in the affected 

area and that each mobile equipment operator will conduct a visual inspection of 

the affected area before travel occurs. 

This modification is based upon the mine has developed a written plan to 

address any cracking or closure of the main haulage, and that the mine will stop 

travel in the affected area should detectable movement, distortion, cracking or 

damage occur.... 

Any significant changes will be reported to MSHA to include additional 

stressing, closure, cracking or squeeze and deformity. 

This modification allows approximately 3 trucks per shift to make 10 

rounds each per shift. It allows mechanics/electricians to travel through the area if 

required to repair equipment. It allows only miners necessary to conduct normal 

mining activities to travel through the area. 

Ex. G-1 at 1-2. 

7

 Order No. 8605622 mandates: 

An accident occurred at this operation on 12/14/2011 at approximately 

19:40 pacific standard time. As rescue and recover work is necessary this order is 

being issued under 103j of the Federal Mine Safety and Health Act of 1977 to 

assure the safety of all persons at this operation. This order is being issued to 

prevent the destruction of any evidence which would assist in investigating the 

cause or causes of the accident. It prohibits all activity in all underground areas of 

the mine except to the extent necessary to rescue an individual or prevent or 

eliminate an imminent danger until MSHA has determined it is safe to resume 

normal mining operations underground. This order applies to all persons engaged 

in the rescue and recovery operation and any other persons on site. This order was 

initially issued orally to the miner operator at 21:00 pacific standard time (the 

local time at the mine) and has now been reduced to writing. 

Ex. G-8 at 25 

6

(...continued) 

36 FMSHRC Page 3347
On December 21, 2011, MSHA issued Citation No. 8565565 alleging that Hecla worked 

in the face of Order No. 8605614 by failing to perform the stress gauge reading directly before 

the rockburst as required by Order No. 8605614-05. Hecla contested this citation, but the parties 

reached a settlement of Citation No. 8565565, which the court approved. 

In the ensuing months, MSHA conducted several regular inspections as well as an impact 

inspection because the mine had previously suffered multiple groundfalls. MSHA maintained the 

two 103(k) orders and also issued numerous citations and orders during these inspections. 

MSHA did not lift the 103(k) orders until Hecla abated all the cited conditions. Many of these 

enforcement actions concerned ground support issues, but several were unrelated. One violation 

required Hecla to clean down the entire Silver Shaft to remove concrete debris from the sides of 

the shaft. This took over 14 months to complete and left the entire Mine with no power, no 

water, and no compressed air. This citation and other citations contributed to Order Nos. 

8605614 and 8605622 remaining open for an uncommonly long period of time. 

On April 2, 2013, MSHA issued modification No. 8605622-13 to allow the operator to 

construct sand walls on the North and South sides of the rockburst area in the 5900 main haulage 

drift and subsequently backfill the area. A barricade was moved pursuant to modification No. 

8605622-13. On June 12, 2013, Stembridge issued modification Nos. 8605614-07 and 8605622-

14, terminating Order Nos. 8605614 and 8605622. 

On January 31, 2012, the USW filed this claim for compensation under section 111. 

II. DISCUSSION

The entire record shows that there is no genuine issue of material fact and Hecla is 

entitled, in part, to partial summary decision as a matter of law. For the reasons set forth below, I 

GRANT, in part, Hecla Limited’s Motion for Partial Summary Decision.9

 I retain jurisdiction of 

8

 MSHA issued a total of 14 modifications to Order No. 8605622. On August 9, 2012, 

MSHA issued modification No. 8605622-10 to allow the operator to drive a bypass around the 

5900 main haulage drift. 

9

 Commission Procedural Rule 67 sets forth the grounds for granting summary decision 

as follows: 

A motion for summary decision shall be granted only if the entire record, 

including the pleadings, depositions, answers to interrogatories, admissions, and 

affidavits, shows: 

(1) That there is no genuine issue as to any material fact; and 

(2) That the moving party is entitled to summary decision as a matter of law. 

29 C.F.R. § 2700.67(b). The Commission has long recognized that “summary decision is an 

extraordinary procedure.”’ Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994) 

(quoting Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981)). The Commission has also 

analogized Commission Procedural Rule 67 to Federal Rule of Civil Procedure 56. Hanson 

Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 2007); See Also Energy West Mining Co., 16 

FMSHRC at 1419 (citing Celotex Corp v. Cartrett, 477 U.S. 317,237 (1986)). 

(continued...) 

36 FMSHRC Page 3348
this case until the parties agree to a specific dollar amount that will be awarded as compensation 

to the miners. 

Section 111 mandates that operators pay wages to miners idled by section 103, 104, and 

107 orders issued by MSHA. The four sentences of section 111 create a “graduated scheme of 

increasing compensation commensurate with increasingly serious operator conduct.” Local 

Union 1261, District 22 United Mine Workers of America v. Consolidation Coal Co., 11 

FMSHRC 1609, 1613 (Sept. 1989). The fourth sentence of section 111 addresses the most 

culpable operator conduct, the failure to comply with a withdrawal order: 

Whenever an operator violates or fails or refuses to comply with any order issued 

under section 103, section 104, or section 107 of this Act, all miners employed at 

the affected mine who would have been withdrawn from, or prevented from 

entering, such mine or area thereof as a result of such order shall be entitled to full 

compensation by the operator at their regular rates of pay, in addition to pay 

received for work performed after such order was issued, for the period beginning 

when such order was issued and ending when such order is complied with, 

vacated, or terminated. 

30 U.S.C. § 821. Each of the four sentences in section 111 allows for greater miner 

compensation than the previous sentence; this escalation is based upon “what the operator has 

done[.]” Local Union 1889, District 17, United Mine Workers of America v. Westmoreland Coal 

Co., 8 FMSHRC 1317, 1327 (Sept. 1986). Application of the fourth sentence of section 111 is an 

issue of first impression. 

The compensation provided by section 111 is, first and foremost, intended to protect 

miner safety; it encourages miners to report withdrawal-worthy dangers without fear of losing 

wages as a result. See Rushton Mining Co. v. Morton, 520 F.2d 716, 720 (3rd Cir. 1975). 

Although the culpability of the operator influences the compensation available to miners, the 

senate did not intend for compensation to be punitive. S. Rep. No. 95-181, 95th Cong., 1st Sess. 

46-47 (1977), reprinted in Legislative History of Federal Mine Safety and Health Act of 1977, at 

634-635 (1978). The Commission has found a nexus requirement in section 111, stating that “we 

will examine the relationship between the underlying reasons for the withdrawal and for the 

order, and will give balanced consideration both to the limited and purely compensatory 

character of section 111 and to the overall safety purposes of the 1977 Mine Act and section 111 

itself.” Local Union No. 781, District 17, United Mine Workers of America v. Eastern Associated 

coal corp., 3 FMSHRC 1175, 1178 (May 1981). 

When the Commission reviews a summary decision under Comm. P. R. 67, it looks “‘at 

the record on summary judgment in the light most favorable to ... the party opposing the 

motion,’ and that ‘the inferences to be drawn from the underlying facts contained in [the] 

materials [supporting the motion] must be viewed in the light most favorable to the party 

opposing the motion.’” Hanson Aggregates New York Inc., 29 FMSHRC at 9 (quoting Poller v. 

Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962); United States v. Diebold, Inc., 369 

U.S. 654, 655 (1962)). 

9

(...continued) 

36 FMSHRC Page 3349
I find that the fourth sentence of section 111 applies to Order No. 8605614-05 because 

Hecla violated this order as set forth in Citation No. 8565565.10 Hecla failed to monitor the stress 

gauges directly before the rockburst. The nexus between the underlying events and the 

withdrawal order that an award of section 111 compensation requires exists between Citation No. 

8565565 and amendment 05 of Order No. 8605614. The issuance of Citation No. 8565565 for 

Hecla’s failure to check pressure gauges as mandated by Order No. 8605614-05 is the violation 

of a withdrawal order that fourth sentence compensation requires. Order No. 8605614, issued on 

11/16/2011, withdrew miners and mandated that only people authorized by MSHA could enter 

the affected area. Ex. G-1 at 2. Order No. 8605614 did not include the requirement to check 

stress gauges because the stress gauges at issue were not installed at that time. On 12/06/2011, 

Order No. 8605614-05 allowed limited travel in the 5900 haulage area based upon Hecla’s 

agreement to “conduct two daily surveys at the start and end of the 1st shift to determine whether 

movement is occurring[.]” Ex. G-1 at 7. A nexus exists between the triggering event, Citation 

No. 8565565, and the specific amendment 05 of Order No. 8605614 because MSHA issued 

Citation No. 8565565 for Hecla’s failure to monitor stress gauges, which Order No. 8605614-05 

required. The nexus between the triggering event and the initial issuance of Order No. 8605614 

and its other amendments is weaker and extending the compensation period to those amendments 

would not make miners safer; the miners who were in the 5900 area at the time of the rockburst 

were permitted in the area under amendment 05 of Order No. 8605614.11 Giving balanced 

10 Citation No. 8565565 states: 

The mine operator worked in the face of 103(k) order 8605614, this order 

was issued by MSHA on November 16, 2011. This order was issued to insure the 

safety of miners at the mine after a violent rock burst occurred and was 

subsequently modified to insure a safe means to repair the damaged area. 

Subsequent action number 8605614-[05] states that the mine operator will 

conduct daily surveys at the start and end of the first shift to determine [whether] 

movement is occurring to indicate if stress levels are increasing. The operator 

submitted a plan that these readings would be taken twice a day at the same time. 

On December 14, 2011 the operator failed to take the last reading just prior to 

another violent rock burst that resulted in serious injuries to seven miners. The 

Mine Superintendent stated that the readings could not be taken because [the] 

steel liner was installed over the gauges and the gauges could not be read. Upon 

inspection it was found that the stress gauges were provided with extended wire 

so that they could be read during the installation of the liner. If this reading was 

taken it may have indicated high levels, which have removed miners from the 2nd

rock burst. This condition has not been designated as “significant and substantial” 

because the conduct violated a provision of the Mine Act rather than a mandatory 

safety standard. 

Ex. G-9. 

11 Although amendment 05 is a modification to Order No. 8605614, I consider it 

separately in this case for compensation purposes. Order No. 8605614-05 is a withdrawal order, 

but it did not withdraw any miners from the Mine as Order No. 8605614 initially did. Rather, 

Order No. 8605614-05 permits miners to enter the affected area, but imposes upon Hecla the 

(continued...) 

36 FMSHRC Page 3350
consideration to the limited and purely compensatory character of section 111 and the overall 

safety purposes of the Act, I find that the miners represented by USW are entitled to 

compensation under the fourth sentence of section 111 beginning on December 6, 2011 at 15:16 

(3:16 p.m. local time). 

I find that miner compensation should end at 21:00 (9:00 p.m. local time) on December 

14, 2011 when MSHA issued Order No. 8605622 because Hecla complied with Order No. 

8605614-05 for the purposes of section 111 at that time.12 A section 103 order is usually issued 

as soon as MSHA is aware of an accident to quickly remove miners from the potentially 

dangerous mine and to give MSHA control of the mine to initiate an investigation. See Miller 

Min. Co., Inc. v. Federal Mine Safety and Health Review Com'n, 713 F.2d 487, 490 (9th Cir. 

1983). Congress drafted sentence four of section 111 to compensate miners “who would have 

been withdrawn from, or prevented from entering” a mine where MSHA forbid access. Although 

it applies in other situations, such as the current case, sentence four of section 111 generally 

applies to situations where MSHA issues a withdrawal order and the operator fails to withdraw 

miners, or allows miners to enter the mine in violation of a withdrawal order. For most section 

103 orders, the only action required of an operator in those situations is to remove miners from 

the mine; when a mine does so, they comply with the affirmative requirements of most section 

103 orders.13 In the situation before me, however, the operator violated a modification to a 

103(k) order and not the original order or the basic withdrawal requirement. 

affirmative action of monitoring the stress gauges. This distinction is critical for compensation 

purposes, since section 111 focuses upon operators violating a withdrawal order by failing to 

remove miners from an area where MSHA forbid the presence of miners, but this case focuses 

upon the violation of an additional affirmative requirement. 

12 I reject USW’s assertion that the ending date of compensation must be June 12, 2013 

because MSHA terminated Order No. 8605614 on that date and I found in my October 29, 2014 

decision that MSHA’s action to maintain both 103(k) orders was not arbitrary or capricious. The 

Commission evaluates official MSHA enforcement activity concerning withdrawal orders 

separately from their effect upon compensation. Compensation analysis focuses “upon the 

conduct of the operator and the conditions in the mine, not the sequencing of MSHA 

enforcement activity.” Local Union, 1889, 8 FMSHRC at 1327; See Local Union 1609, District 

2, United Mine Workers of America v. Greenwich Collieries, Division of Pennsylvania Mines 

Corp., 8 FMSHRC 1302, 1306 (Sept. 1986) (refers to “safety” and “compensation” 

considerations separately). Although the timelines of the underlying orders and the compensation 

period often coincide, the Commission bifurcates the analysis because it is possible, as in this 

case, that MSHA’s enforcement decisions do not determine the duration of compensation. I 

found that the 103(k) orders were not maintained in an arbitrary or capricious manner in a 

decision separate from the current compensation case. Although those orders directly underlie 

and are related to this compensation case, they do not control this compensation case; USW 

repeatedly argues against a “formalistic emphasis on sequencing” but chooses to place that 

emphasis upon the orders when convenient for its own claims. 

13 After withdrawal, a 103 order remains in effect and the operator can still violate such 

an order by entering the mine against the prohibition of the 103(j) or 103(k) order, which could 

trigger sentence four compensation. In that situation, the operator would comply with the 103 

11

(...continued) 

(continued...) 

36 FMSHRC Page 3351
Order No. 8605614-05 included the affirmative requirement that Hecla must monitor 

stress gauges to continue work in the affected area; once Order No. 8605622 forbade work in the 

5900 haulage area, however, that requirement was complied with for the purposes of sentence 

four, section 111 compensation.14 The order required the monitoring of gauges due to the 

presence of miners in the area; once the miners were withdrawn and work in the area was 

forbidden, that requirement fell away. For this reason, both Inspectors Brad Breland, a 

supervisory mine inspector, and Kevin Hirsch, the assistant district manager at the time of the 

accident, testified that Order No. 8605622 superseded Hecla’s requirement to monitor the stress 

gauges. Not only was the monitoring no longer required after the issuance of Order No. 8605622,

15 but Inspector Breland testified that to believe so was “silly[.]” (Tr. 108). 

order when it removed the miners from the mine. The operator would compensate miners 

beginning with the issuance of the 103 order until their removal from the mine because at that 

time the operator would once again be in compliance with the order. In this situation, 

compensation runs from the time of the initial order to monitor stress gauges until stress gauges 

no longer needed to be monitored. In either situation, the compensation would not extend into 

the future for as long as the 103 order remained in effect. 

14 Within days of the December 14, 2011 rockburst, Hecla notified MSHA that it would 

abandon the 5900 haulage drift and drive a bypass around that area. 

15 The Commission has ruled that 103(k) orders should not preclude compensation under 

section 111. This ruling, however, primarily dealt with the interplay between section 103 

withdrawal orders, which are usually issued immediately when an accident occurs, and other 

types of withdrawal orders. Local Union 1889, 8 FMSHRC at 1323. It does not address 

interactions between multiple 103 orders. When MSHA issues a 103 order, it has control of the 

affected area and any entrance into that area, which precludes the necessity to issue an 

additional, overlapping 103 order. In this instance, MSHA took the unusual action of issuing two 

103 orders that were in effect at the same time and governed overlapping areas. I found that this 

action was not arbitrary or capricious. That finding was based upon the chaotic situation at the 

mine, which caused MSHA to maintain Order No. 8605614 as a “spotlight” on the dangerous 

5900 area. Hecla Limited, 36 FMSHRC __, slip op. at 6. MSHA retained both 103(k) orders for 

an administrative or managerial purpose; Order No. 8605614 was not modified or used to control 

the mine after the issuance of Order No. 8605622. Instead, Order No. 8605614 simply served as 

a “spotlight” to prevent the most dangerous area in the mine from being overlooked. Although 

Order No. 8605622 could be terminated before Order No. 8605614, it was not necessary to keep 

Order No. 8605614 active; MSHA could have modified Order No. 8605622 to continue control 

over the 5900 area. Order No. 8605614 was a placeholder. It had no affirmative requirements or 

power once MSHA issued Order No. 8605622. Under Section 111, “the limited nature of 

compensation...represents a careful and deliberate balancing by Congress of the competing 

interests of miners and mine operators[,]” but it does not consider the administrative or 

managerial motives of MSHA when it controls a mine under a 103(k) order. Local Union 1261, 

11 FMSHRC at 1613. In this case, Order No. 8605622 does not preclude compensation, but it 

does affect the length of the compensation period. It is possible that a situation would arise that 

two 103(k) orders would interact differently with regard to section 111. My ruling is limited to 

the facts before me today. 

13

(...continued) 

36 FMSHRC Page 3352
 The fourth sentence of section 111 applies in this case because Hecla violated Order No. 

8605614-05 by failing to monitor pressure gauges. Hecla’s culpability in this compensation case 

relates to that action and requirement, a requirement that MSHA admits Order No. 8605622 

superseded. The extended closure of the mine after the issuance of Order No. 8605622 focused 

upon myriad issues, most of which were unrelated to the 5900 area and none of which addressed 

monitoring the stress gauges at issue.16 Section 111 focuses upon the culpability of mine 

operators relating to specific actions concerning withdrawal orders. Local Union 1889, 8 

FMSHRC at 1327. Although Hecla was responsible for all the violations that MSHA required 

Hecla to abate before the termination of Order No. 8605622, the remediation of those violations 

did not address Citation No. 8565565, which is the action that sentence four of section 111 

compensation hinges upon. When MSHA issued Order No. 8605622 it “superseded” the 

requirement of Order No. 8605614-05 to monitor the stress gauges, which meant Hecla was then 

in compliance with Order No. 8605614-05 and sentence four, section 111 compensation 

ceased.17

The fourth sentence of section 111 contemplates a situation where an operator fails to 

withdraw miners. The case before me involves the violation of a 103(k) order, but not due to a 

failure to withdraw miners. The compensation period therefore does not begin at the time of the 

initial order of withdrawal, but rather when MSHA required Hecla to begin monitoring the stress 

gauges. After the violation of the withdrawal order, the unusual sequence of events obscures the 

end of the compensation period; the limited nature of section 111 warrants the compensation 

period to end when the operator could no longer comply with the specific requirement of the 

withdrawal order at issue. 

I find that only miners who worked in the area controlled by Order No. 8605614-05 from 

the time the stress reading was not taken until the time that miners were withdrawn as a result of 

the rock burst in the pillar are entitled to compensation. Sentence four of Section 111 only 

mandates compensation for miners “who would have been withdrawn from, or prevented from 

entering” the mine. 30 U.S.C. § 821. Section 111 uses the phrase “who would have been” 

because it addresses only those miners who worked in the face of a withdrawal order. The 

issuance of Order No. 8605614 on November 16, 2011 idled many miners, but they would not 

have been withdrawn from the area restricted by Order No. 8605614-05 on December 15 

because they were not there to be withdrawn. The plain language of section 111 dictates that 

only miners who worked in the face of Order No. 8605614-05 are entitled to compensation; 

miners who worked in the 5900 haulage drift, the 54 ramp, or the 5700 level after Hecla failed to 

monitor the stress gauges are therefore entitled to compensation. 

16 Order No. 8605622 closed the Silver Shaft, a decision that had no relation to the 

November 16, 2011 or December 14, 2011 rockbursts in the 5900 area, Order No. 8605614, or 

Citation No. 8565565. The remediation MSHA required in the Silver Shaft caused Order No. 

8605622 to stay in place for over a year and did not address the 5900 area, rockbursts, or 

pressure gauges. 

17 My analysis determining the end date of compensation is similar to the nexus analysis 

to determine the relation of a withdrawal order to the idling of miners. 

36 FMSHRC Page 3353
The entire record shows that there is no genuine issue of material fact and Hecla is 

entitled, in part, to partial summary decision as a matter of law as set forth above. Miners who 

worked in the 5900 haulage area, the 54 ramp, or the 5700 level during the time between Hecla’s 

failure to check the stress gauges and the December 14, 2011 rockburst are entitled to 

compensation under sentence four of section 111. The compensation period begins on December 

6, 2011 at 15:16 and ends on December 14, 2011 at 21:00.18 I GRANT, in part, Hecla’s Motion 

for Partial Summary Decision. Although I hold that select miners are entitled to compensation 

under the fourth sentence of section 111 of the Mine Act, I DENY the USW’s motion for Motion 

for Partial Summary Decision as set forth in this order. I ORDER the parties to agree to the 

specific miners due compensation and the amount of that compensation; until I approve that 

submission, I retain jurisdiction of this matter. 

/s/ Richard W. Manning

 Richard W. Manning 

 Administrative Law Judge 

Distribution: 

 

Laura E. Beverage, Esq., and Karen Johnston, Jackson Kelly PLLC, 1099 18th St., Suite 2150, 

Denver, CO 80202 (Certified Mail) 

Susan J. Eckert, Esq., Santarella & Eckert, LLC, 7050 Puma Trail, Littleton, CO 80125 

(Certified Mail) 

 18 The Commission has held that interest should be included in the payment of 

compensation to miners: 

To make the miners whole for the time value of their compensable pay, 

therefore, we hold in affirmance of the judge that interest is appropriate on sums 

of compensation due from the date that the compensable pay would have been 

paid but for the idlement until the date that the compensation due is tendered. This 

result comports with the interest approach followed in discrimination cases under 

Arkansas–Carbona. 5 FMSHRC at 2051–53 & n. 15. 

Local Union 2274, District 28, United Mine Workers of America v. Clinchfield Coal Co., 

10 FMSHRC 1493, 1503 (Nov. 1988). 

36 FMSHRC Page 3354
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 

FAX: 202-434-9949 

December 30, 2014 

BRODY MINING, LLC, 

 Contestant,

v. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

Respondent. 

CONTEST PROCEEDINGS 

Docket No. WEVA 2014-82-R 

Order No. 9003242; 10/28/2013

Docket No. WEVA 2014-83-R 

Order No. 7166788; 10/28/2013 

Docket No. WEVA 2014-86-R 

Order No. 4208892; 10/29/2013

Docket No. WEVA 2014-87-R 

Order No. 4208893; 10/29/2013 

Docket No. WEVA 2014-97-R 

Order No. 7166790; 11/04/2013

Docket No. WEVA 2014-151-R 

Order No. 9003246; 11/07/2013 

Docket No. WEVA 2014-161-R 

Order No. 9004638; 11/12/2013 

Docket No. WEVA 2014-190-R 

Order No. 4208898; 11/14/2013 

Docket No. WEVA 2014-191-R 

Order No. 7166793; 11/18/2013 

Docket No. WEVA 2014-192-R 

Order No. 4208899; 11/19/2013 

Docket No. WEVA 2014-193-R 

Order No. 9005720; 11/20/2013 

Docket No. WEVA 2014-221-R 

Order No. 8155306; 11/26/2013 

Docket No. WEVA 2014-244-R 

Order No. 9005722; 12/03/2013

36 FMSHRC Page 3355
Docket No. WEVA 2014-284-R

Order No. 8154092; 12/05/2013 

Docket No. WEVA 2014-285-R 

Order No. 7166798; 12/09/2013

Docket No. WEVA 2014-447-R 

Order No. 7166805; 01/15/2014 

Docket No. WEVA 2014-448-R 

Order No. 7166806; 01/15/2014 

Docket No. WEVA 2014-449-R 

Order No. 7166807; 01/15/2014 

Docket No. WEVA 2014-450-R 

Order No. 7166808; 01/15/2014 

Docket No. WEVA 2014-451-R 

Order No. 8154104; 01/15/2014 

Docket No. WEVA 2014-452-R 

Order No. 9005729; 01/13/2014 

Docket No. WEVA 2014-453-R 

Order No. 9005731; 01/13/2014 

Docket No. WEVA 2014-454-R 

Order No. 9005732; 01/14/2014 

Docket No. WEVA 2014-455-R 

Order No. 9005733; 01/14/2014 

Docket No. WEVA 2014-456-R 

Order No. 9005735; 01/15/2014 

Docket No. WEVA 2014-457-R

Order No. 9005736; 01/15/2014 

Docket No. WEVA 2014-479-R 

Order No. 7166815; 01/23/2014 

Docket No. WEVA 2014-480-R 

Order No. 7166816; 01/23/2014 

36 FMSHRC Page 3356
Docket No. WEVA 2014-529-R 

Order No. 7166817; 01/27/2014 

Docket No. WEVA 2014-530-R 

Order No. 9005739; 01/27/2014 

Docket No. WEVA 2014-531-R

Order No. 9005747; 02/10/2014 

Docket No. WEVA 2014-537-R 

Order No. 9007544; 02/04/2014 

 

Docket No. WEVA 2014-539-R 

Order No. 7166822; 01/28/2014 

Docket No. WEVA 2014-561-R 

Order No. 9005740; 01/27/2014 

Docket No. WEVA 2014-562-R 

Order No. 9005742; 01/29/2014 

 

Docket No. WEVA 2014-563-R 

Order No. 7166826; 02/04/2014 

 

Docket No. WEVA 2014-570-R 

Order No. 9005750; 02/19/2014 

Docket No. WEVA 2014-571-R 

Order No. 7166824; 01/29/2014 

Docket No. WEVA 2014-572-R 

Order No. 9005741; 01/29/2014 

 

Docket No. WEVA 2014-593-R 

Order No. 9005753; 02/20/2014 

 Docket No. WEVA 2014-594-R 

Order No. 7166831; 02/11/2014 

 

Docket No. WEVA 2014-638-R 

Order No. 9005754; 02/24/2014

 

Docket No. WEVA 2014-639-R 

Order No. 9005762; 03/04/2014 

36 FMSHRC Page 3357
Docket No. WEVA 2014-640-R 

Order No. 9003274; 03/04/2014 

 

Docket No. WEVA 2014-641-R 

Order No. 9005763; 03/04/2014 

 

Docket No. WEVA 2014-672-R 

Order No. 9005758; 02/25/2014 

Docket No. WEVA 2014-673-R 

Order No. 9005756; 02/25/2014 

 

Docket No. WEVA 2014-674-R 

Order No. 7166838; 02/24/2014 

 

Docket No. WEVA 2014-675-R 

Order No. 7166839; 02/24/2014 

Docket No. WEVA 2014-676-R 

Order No. 8166840; 02/24/2014 

 

Docket No. WEVA 2014-678-R 

Order No. 7166837; 02/24/2014 

 

Docket No. WEVA 2014-679-R 

Order No. 9005755; 02/24/2014 

Docket No. WEVA 2014-680-R 

Order No. 9005757; 02/25/2014 

Docket No. WEVA 2014-681-R 

Order No. 9005759; 02/25/2014 

Docket No. WEVA 2014-715-R 

Order No. 8135796; 03/11/2014 

Docket No. WEVA 2014-716-R 

Order No. 8135797; 03/12/2014 

 

Docket No. WEVA 2014-717-R

Order No. 9001091; 03/11/2014 

 

Docket No. WEVA 2014-718-R 

Order No. 9001095; 03/19/2014 

 

36 FMSHRC Page 3358
Docket No. WEVA 2014-719-R 

Order No. 9001096; 03/11/2014 

 

Docket No. WEVA 2014-720-R 

Order No. 9005764; 03/05/2014 

 

Docket No. WEVA 2014-722-R 

Order No. 9007123; 03/23/2014 

Docket No. WEVA 2014-745-R 

Order No. 9969627; 03/24/2014 

 

Docket No. WEVA 2014-804-R 

Order No. 9005343; 04/03/2014

 

Docket No. WEVA 2014-805-R 

Order No. 9005768; 04/03/2014 

Docket No. WEVA 2014-806-R 

Order No. 9005769; 04/07/2014 

 

Docket No. WEVA 2014-807-R 

Order No. 9005770; 04/07/2014 

 

Docket No. WEVA 2014-811-R 

Order No. 9005344; 04/09/2014 

Docket No. WEVA 2014-813-R 

Order No. 9005772; 04/09/2014 

 

Docket No. WEVA 2014-814-R 

Order No. 9005773; 04/09/2014

 

Docket No. WEVA 2014-819-R 

Order No. 9005774; 04/15/2014 

Docket No. WEVA 2014-854-R 

Order No. 9005778; 04/21/2014 

 

Docket No. WEVA 2014-855-R 

Order No. 9005779; 04/22/2014 

 

Docket No. WEVA 2014-856-R 

Order No. 9005780; 04/22/2014 

36 FMSHRC Page 3359
Docket No. WEVA 2014-909-R 

Order No. 9005347; 05/01/2014 

 

Docket No. WEVA 2014-974-R 

Order No. 9005349; 05/13/2014 

 

Docket No. WEVA 2014-975-R 

Order No. 9005350; 05/13/2014 

 

Docket No. WEVA 2014-976-R 

Order No. 9007426; 05/13/2014 

Docket No. WEVA 2014-1012-R

Order No. 9005786; 05/29/2014 

Docket No. WEVA 2014-1013-R

Order No. 9005787; 05/29/2014

Docket No. WEVA 2014-1035-R 

Citation No. 9005792; 06/12/2014

Docket No. WEVA 2014-1036-R

Citation No. 9005362; 06/11/2014

Docket No. WEVA 2014-1037-R 

Citation No. 9005360; 06/04/2014

 

Docket No. WEVA 2014-1038-R 

Citation No. 9005361; 06/11/2014 

Docket No. WEVA 2014-1135-R

Order No. 9905374; 07/15/2014 

Docket No. WEVA 2014-1138-R 

Order No. 9005376; 07/16/2014 

Docket No. WEVA 2014-1157-R 

Order No. 9009660; 07/22/2014 

Docket No. WEVA 2014-1993-R 

Order No. 9005384; 07/30/2014 

Docket No. WEVA 2014-1994-R 

Order No. 9005383; 07/30/2014 

 

36 FMSHRC Page 3360
 Docket No. WEVA 2014-1995-R 

 Order No. 9005382; 07/30/2014 

 Docket No. WEVA 2014-1996-R 

 Order No. 9005380; 07/30/2014 

Docket No. WEVA 2014-2172-R 

Order No. 9003948; 09/08/2014 

 Docket No. WEVA 2014-2173-R 

 Order No. 9005393; 09/09/2014 

 Docket No. WEVA 2014-2174-R 

 Order No. 9005398; 09/10/2014 

 Docket No. WEVA 2014-2175-R 

 Order No. 9005400; 09/10/2014 

Docket No. WEVA 2014-2221-R 

Order No. 9007439; 09/17/2014 

Docket No. WEVA 2015-59-R 

Order No. 7272454; 10/07/2014 

Docket No. WEVA 2015-60-R 

Order No. 7272462; 10/07/2014 

Docket No. WEVA 2015-61-R 

Order No. 7272494; 10/07/2014 

Docket No. WEVA 2015-63-R 

Order No. 9005704; 10/14/2014 

Docket No. WEVA 2015-66-R 

Order No. 9005705; 10/14/2014 

Docket No. WEVA 2015-67-R 

Order No. 9006768; 10/14/2014 

Docket No. WEVA 2015-68-R 

Order No. 9006769; 10/14/2014 

Docket No. WEVA 2015-121-R 

Order No. 7219154; 10/24/2014 

Mine: Brody Mine No. 1

 Mine ID: 46-09086 

36 FMSHRC Page 3361
SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

BRODY MINING, LLC, 

Respondent. 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 2013-370 

A.C. No. 46-09086-308309 

 Docket No. WEVA 2013-564 

 A.C. No. 46-09086-310927 

 

 Docket No. WEVA 2013-997 

 A.C. No. 46-09086-321030 

 

 Docket No. WEVA 2013-1055 

 A.C. No. 46-09086-323691 

 

 Docket No. WEVA 2013-1189 

 A.C. No. 46-09086-326531 

 

 Docket No. WEVA 2013-619 

 A.C. No. 46-09086-342759 

 

 Docket No. WEVA 2013-620 

 A.C. No. 46-09086-342759 

 

 Docket No. WEVA 2014-702 

 A.C. No. 46-09086-344708 

 

 Docket No. WEVA 2014-842 

 A.C. No. 46-09086-347271 

 

 Mine: Brody Mine No. 1 

Before: Judge William B. Moran 

Order on the Secretary’s Motion for Certification for Interlocutory Review and Order on 

the Secretary’s Renewed Emergency Motion to Stay the Court’s Order Dismissing the 

Pattern of Violations Notice

Upon consideration of the Secretary’s Motions and the response thereto, for the reasons 

which follow, the Court GRANTS the Motion for Certification for Interlocutory Review and 

DENIES the Secretary’s Renewed Emergency Motion to Stay.1

1

 The use of the term “Emergency” is the Secretary’s self-characterization of its motion to 

stay. The Court does not subscribe to the accuracy of that characterization. 

36 FMSHRC Page 3362
I. Order on the Secretary’s Motion for Certification for Interlocutory Review 

The Secretary’s Motion for Certification for Interlocutory Review (“Motion for IR”) requests 

that this Court certify its November 1, 2014 Order, which among other actions and findings, 

dismissed the claim that Brody had a pattern-of-violations (“POV”), as asserted in the POV 

notice issued by the Secretary to Brody Mining on October 24, 2013. Pursuant to Commission 

Rule 76 (29 C.F.R. § 2700.76), the Secretary now requests that the ALJ certify its Order for 

interlocutory review. 

In support of its Motion for IR, the Secretary states that the Court’s Order is interlocutory 

because it did not resolve the 357 citations and orders not designated as “significant and 

substantial” (“S&S”) that were included with the 54 S&S citations and orders.2

 It notes that “[a]n 

order qualifies for interlocutory review under Rule 76 if: (i) the interlocutory ruling involves a 

controlling question of law, and (ii) immediate review may materially advance the final 

disposition of the proceeding [and the Secretary maintains that] both requirements are met here.” 

Motion for IR at 2. 

The IR motion continues with the Secretary stating that the “dismissal order presents the 

following controlling questions of law: (i) whether the ALJ had jurisdiction to adjudicate the 

validity of the POV notice issued to Brody when the hearing notice listed only the civil penalty 

dockets containing the citations and orders underlying the POV notice, and not the dockets 

containing Brody’s contests of the withdrawal orders issued pursuant to the POV notice; 

(ii) whether the ALJ erred as a matter of law in finding that the Secretary failed to comply with 

the ALJ’s oral pre-hearing order; and, (iii) whether the Secretary’s definition of “pattern of 

violations” satisfies the requirements of Section 104(e)(4) of the Mine Act and the Due Process 

Clause of the Fifth Amendment to the United States Constitution.”3

 Motion for IR at 2. 

The Court does agree with the Secretary’s assertion that “[i]mmediate review may 

materially advance resolution of this proceeding by allowing the POV issues, which are legal 

issues that may be resolved independently from the rest of the case, to be adjudicated on appeal 

without awaiting the ALJ’s adjudication of the 357 non-S&S citations and orders—which have 

no bearing on the POV issues—contained in the civil penalty dockets pending before the ALJ.” 

Motion for IR at 2-3.4

 (emphasis added). 

2

 The Secretary adds that “[t]o the extent that the contested POV withdrawal orders were 

properly before the ALJ—and the Secretary contends they were not—the fact that the ALJ did 

not adjudicate those orders not only prevents the order from being final but also deprived the 

ALJ of jurisdiction to rule on the validity of the POV notice.” Motion for IR at n.1. 

3

 The quoted language reflects the Secretary’s characterization of the issues. 

4

 The Secretary adds that “[a]lternatively, the ALJ may wish to consider directing that his 

November 1, 2014 order of dismissal be entered as a final, appealable order pursuant to Federal 

Rule of Civil Procedure 54(b), citing Westmoreland Coal Co., 5 FMSHRC 1406, 1411-12 

(1983)(“Westmoreland”). Motion at 3, n. 2. The Commission observed in Westmoreland that 

Rule 54(b) permits adjudication of fewer than all claims presented in an action and that the judge 

in that case could have applied that Rule allowing him to resolve two of the three claims while 

(continued...)

36 FMSHRC Page 3363
Finally, the Secretary notes that it “contacted Brody’s counsel, who stated that he does 

not oppose the motion to certify the ALJ’s decision vacating the pattern of violations notice, but 

reserves the right to address any particular assertion by the Secretary in this motion.” Motion for 

IR at 3. Brody, in a December 17, 2014 email response to an email inquiry from the Court about 

the Secretary’s characterization of its position, advised that while it does “not necessarily agree 

with the Secretary's formulation of the three issues [presented in the Secretary’s Motion for 

certification for Intelocutory Review] [ it believes that] the fundamental issue of whether the 

vacation of the POV notice (which in the Secretary's view raises those three issues ) is properly 

[the] subject of interlocutory review and the Judge could rule on it without further submission by 

Brody.” 

Based on the foregoing, the Court GRANTS the Secretary’s Motion and in so doing certifies 

that the determinations made by it in its November 3, 2014 Order are interlocutory in the sense 

that a large number of citations and orders are associated with the listed dockets which do not 

involve claims that they were S&S, and that the rulings which were made in the November 3, 

2014 Order involve controlling questions of law and that, in the Court’s opinion, immediate 

review will materially advance the final disposition of the proceeding.5

 

retaining jurisdiction of the third. The Commission noted that had the Judge issued a decision 

resolving the first two claims and that, as there was no just reason to delay that decision, the 

decision would have been a final decision, subject to the review procedures of the Mine Act and 

that such an outcome would also have been in harmony with then Commission Rule 64(a), (now 

Rule 2700.67(a)), which then and now provides in pertinent part that at any time after 

commencement of a proceeding and before the scheduling of a hearing on the merits, a party to 

the proceeding may move the judge to render summary decision disposing of all or part of the 

proceeding. The Commission held that the resolution of such a question “belongs within the 

informed discretion of the judge.” However, in Westmoreland as here, neither party suggested 

applying Federal Rule 54(b) and the hearing has occurred for the critical aspects of the 

Secretary’s Pattern claim. While it would appear that this option is not available, as noted in the 

body of this Order, the Court may avail itself of procedural rule section 2700.76(a)(1)(i), 

addressing interlocutory review and does so. 

5

 Brody has also urged the Court to leave no doubt that its decision vacating the pattern 

notice “automatically converts the Section 104e orders based on the POV notice to 104a 

citations.” Brody email dated December 17, 2014. Although the Court believes that its Order 

clearly conveyed that its decision had that effect, it hereby reaffirms that its decision, which 

vacated the claim that Brody had a pattern of violations. That determination automatically 

converts all Section 104e orders based on the POV notice to 104a citations. That result is 

ineluctable. When faced with the evidentiary burdens at the hearing, the Secretary’s Pattern of 

Violation Notice turned out to be stillborn. Beyond listing some 54 citations with, at 25, nearly 

half of its basis for the claim determined not to be S&S, the Secretary was also unable to present 

a coherent basis for its claim that there was a pattern of violations by Brody. 

4

 (...continued)

36 FMSHRC Page 3364
II. Order on the Secretary’s Renewed Emergency Motion to Stay the Court’s Order

Dismissing the Pattern of Violations Notice

The Secretary has also filed a Renewed Emergency Motion to Stay the Court’s Order 

Dismissing the pattern of violations notice6 (“Renewed Motion”). The Motion correctly asserts 

that the Court’s November 1, 2014 Order “effectively preclud[es] the Secretary from issuing any 

further withdrawal orders pursuant to that notice so long as the ALJ’s order remains in effect.” 

Renewed Motion at 1.7 

As the Renewed Motion essentially repeats the arguments made in its first Emergency 

Motion, an extended discussion is not required. Although the Secretary expends effort on a 

contention that, in its most favorable construction, could be described as a semantic dispute, 

there is no genuine question about the subjects that were litigated during the three weeks set 

aside for hearing. In this regard the Court would comment that, in reaction to the Secretary’s 

claim that the Court cannot address the validity of a POV notice, the heart of the matter at issue 

here need not be made more complex than it deserves. Arguments over nomenclature should not 

control the resolution of this matter. For example, one could contend that a POV notice stands 

forever, unassailable by itself, but such notice has no meaning, effect or impact until the first 

104(e) withdrawal order flows from it. At that point, all would agree that whether there is in fact 

a pattern of violations and whether the alleged violations in support of that claim are present may 

be challenged. And that is exactly what occurred here with the end result of this Court dismissing 

the Secretary’s claim that it demonstrated a pattern of violations. 

6

 The Renewed Motion notes that the Secretary previously filed an “Emergency Motion 

to Stay Order” with the Court on November 4, 2014, which Brody opposed and which was 

denied on November 26, 2014. This is an opportune moment to note the extent to which Brody 

has been adversely impacted by a process which was advertised by MSHA as being designed for 

the expeditious resolution of challenges to POV notices. With the pattern-of-violations notice 

having been issued to Brody Mining on October 24, 2013, more than a year and two months now 

have elapsed since then and there is no near term resolution of Brody’s challenges to that POV 

notice in sight. To maintain legitimacy, enforcement of the Mine Act’s provisions, through 

measures such as a charge of a pattern of violations, must still be about fair procedures. A stay 

would effectively mean that Brody, though it prevailed at the hearing, would continue to face an 

indefinite, and likely prolonged, period of new section 104(e) withdrawal orders, each of which 

in this Court’s determination stem from the same defective notice. In this Court’s view, such a 

result is inconsistent with procedural due process. 

7

 In what the Court views as a troublesome inclusion, the Secretary has inserted the 

irrelevant and inaccurate claim that “[i]n the six weeks since issuance of the ALJ’s order 

dismissing the POV notice, Brody’s rate of “significant and substantial” violations has tripled.” 

Renewed Motion at 2. The Court views this inclusion as emblematic of the Secretary’s 

continuing conflation of charges with proof of violations, as if they were the same thing. Brody’s 

rate of citations being issued with the significant and substantial element may have increased 

threefold, but that does not mean that its rate of established violations with that element has 

tripled, unless the Secretary believes that leveling the charge is all that is needed. 

36 FMSHRC Page 3365
In his January 30, 2014 Order, Chief Administrative Law Judge Robert Lesnick noted 

that the basis for the Secretary’s pattern notice rested upon 54 S&S citations and orders, which 

were “grouped according to the hazards they allege[d] (ventilation and methane hazards, 

emergency preparedness and escapeway hazards, roof and rib hazards, and inadequate 

examination hazards)” 36 FMSHRC 284, 293 (Jan. 2014). Thus, it has been clear since the 

inception of the issuance of the pattern notice that the 54 citations and orders were the foundation 

upon which that pattern charge was built. Contrary to the implication of the Secretary that “[t]he 

ALJ subdivided the hearing into three separate parts, each part corresponding to one subgroup of 

the 54 S&S citations and orders relating to one of the distinct patterns identified by the POV 

notice,” (Renewed Motion at 3) the Court didn’t invent those groupings; they were presented by 

the Secretary, with a hearing week dedicated to each group. Importantly, Chief Judge Lesnick 

took note that “[s]ince the issuance of Notice No. 7219154, MSHA has issued (and continues to 

issue as of the date of this order) numerous section 104(e) withdrawal orders. Brody has 

contested, and continues to contest, all of these orders (since Brody received its POV notice, and 

as of the date of this order, it has been issued 28 section 104(e) orders that have been contested 

and docketed at the Commission). As additional contests are filed with the Commission, [the 

Chief Judge announced in his January 30, 2014 Order that he would] “consolidate them with 

these proceedings.”8

 36 FMSHRC 284, 293 (Jan. 2014)(emphasis added). 

The overriding point is that the Secretary completely understood that the hearing before 

the Court had a twofold purpose associated with the POV notice: 1. the Secretary had to present 

a coherent basis for its claim that the 54 citations/orders constituted a pattern of violations and 2. 

upon setting forth that basis, the Secretary was then obligated to prove that each of the 

citations/orders making up the claim of a pattern of violations were factually established as 

having the significant and substantial trait. The Secretary failed in both regards. The Secretary 

never explained the basis for his claim that the alleged violations constituted a pattern and, of no 

small consequence, at the hearing he failed to establish for nearly half, 46.3%, of the 

citations/orders that they were in fact S&S violations. With these, twin, significant and 

substantial failures on the Secretary’s part, no pattern of violations was established and the claim 

that Brody had engaged in a Pattern of Violations was properly dismissed. As the foundation for 

its Pattern of Violations Notice crumbled, the required consequence was that all subsequently 

issued 104(e) orders built on that defective foundation were necessarily converted to 104(a) 

citations. 

Brody submitted a Response in Opposition. As the Court is denying the Secretary’s 

Renewed Motion, the discussion of that Response will be brief. However, the Court would 

comment that it largely endorses Brody’s contentions. For example, the Court agrees that the 

Secretary’s claim of lack of jurisdiction is hollow.9

 So too, the Court rejects the Secretary’s 

8

 It should also be noted that if the docket numbers containing Brody’s contests of the 

withdrawal orders were deemed to have been improperly included, subsequent litigation would 

change nothing - the core issues have already been litigated and decided. Thus, in the Court’s 

estimation, this is simply an attempt by the Secretary to avoid facing up to its twin failings in its 

pattern of violations claim. 

9

 As Brody observed in its Response, “The Secretary first raised such argument in his 

posthearing brief but had not previously raised that issue. . . . In his Position Statement to the 

(continued...)

36 FMSHRC Page 3366
claims regarding the likelihood that the movant will prevail on the merits of its appeal; that 

irreparable harm will result to the movant if the stay is not granted; that there is an absence of 

adverse effects on other interested parties; and that it has established that the stay is in the public 

interest. See the Court’s November 26, 2014 Order Denying the Secretary’s first emergency 

motion to stay. 

Conclusion 

On the basis of the foregoing, the Court DENIES the Secretary’s Renewed Emergency 

Motion to Stay the Court’s Order Dismissing the Pattern of Violations Notice. 

So Ordered 

/s/ William B. Moran

William B. Moran 

Administrative Law Judge 

ALJ, filed July 17, 2014, which included docket numbers for prepenalty contests of Section 

104(e) orders in its caption, the Secretary clearly evidenced an understanding that any hearing 

would include the contests of the POV notice (Position Statement at 11). In his prehearing 

statement filed August 25, 2014, the Secretary again included as part of the caption four 

prepenalty contests of Section 104(e) orders in addition to the civil penalty dockets that he now 

includes in the caption by themselves. . . . It has been clear in each notice of contest filed by 

Brody that the POV notice is at issue. It has also been clear that the Secretary concedes that in 

the contest of a Section 104(e) order, the POV notice can be challenged. . . . It is clear that the 

Secretary fully understood that the validity of the POV was at issue prior to and during the 

hearing and his removal of the docket numbers from his last submissions is either inadvertent or 

disingenuous. . . . 

It is clear that throughout the 7 days of hearing that the Secretary believed that the issue 

of the POV notice and a pattern was at issue as evidenced by a discussion of the docket numbers 

at hearing: 

MR. MOORE: -- are related to every prepenalty contest in the 104(e) order that’s 

pending before the Commission, and there are approximately a hundred – a hundred of those, 

some of which were before the commission on the appeal, the interlocutory appeal. So I’m a 

little bit – I want to be careful that we’re – all understand that, while we’re looking at individual 

citations for civil penalty dockets, we’re also looking at the broader issue or else we wouldn’t 

even have to talk about that. . . . The Secretary did not object to such assertion.” Response at 7-9. 

9

 (...continued)

36 FMSHRC Page 3367
Distribution: 

Michael T. Cimino, Esq., Jackson Kelly, PLLC, 500 Lee Street East, Suite 1600, Charleston, 

WV 25301-3202 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401 Liberty 

Avenue, Pittsburgh, PA 15222 

K. Brad Oakley, Esq., Jackson Kelly PLLC, 175 East Main Street, Suite 500, Lexington, KY 

40507 

Adam J. Schwendeman, Esq., 500 Lee Street East, Suite 1600, Charleston, WV 25301-3202 

Benjamin M. McFarland, Esq., Jackson Kelly, PLLC, 1144 Market Street, Wheeling, WV 26003 

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

22 Floor West, Arlington, VA 22209-3939 

Lauren Marino, Esq. Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

Room 2226, Arlington, VA 22209-2296 

Jason Grover, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., Room 

2226, Arlington, VA 22209-2296 

Ronald Gurka, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

Room 2226, Arlington, VA 22209-2296 

Dana Ferguson, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

Room 2226, Arlington, VA 22209-2296 

36 FMSHRC Page 3368