FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

721 19th ST. SUITE 443

DENVER, CO 80202-2500

TELEPHONE: 303-844-5266 / FAX: 303-844-5268

January 26, 2024 

DECISION AND ORDER

Appearances: Maria C. Rich-DoByns, CLR, U.S. Department of Labor, MSHA, 1100 

Commerce Street, Room 462, Dallas, TX 75242 

Micah Flippen, Billy Cooper Stone Co., Inc., P.O. Box 678, Jarrell, TX 

76537 

Before: Judge Simonton 

I. INTRODUCTION

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor, acting through the Mine Safety and Health Administration, against Billy Cooper Stone 

Co., Inc., (“Cooper Stone” or “Respondent”), pursuant to the Federal Mine Safety and Health 

Act of 1977 (Mine Act), 30 U.S.C. § 801.1

 This case involves two Section 104(a) citations with 

a total proposed penalty of $1,757.00. 

 

The parties presented testimony and documentary evidence regarding the citation at issue 

at a virtual hearing held on November 15, 2023. MSHA Inspector Jason Hoermann testified for 

the Secretary. Billy Cooper Stone Co., Inc., owner Micah Flippen and employee Dan Wilson 

testified for the Respondent. After fully considering the testimony and evidence presented at 

hearing and the parties’ post-hearing briefs, I AFFIRM Citation Nos. 9741862 and 9741863, as 

modified herein. 

1 In this decision, the joint stipulations, transcript, Secretary’s exhibits, and Respondent’s 

exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. S–#,” and “Ex. R–#,” respectively.

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA),

 Petitioner,

 v. 

BILLY COOPER STONE CO., INC., 

 Respondent.

CIVIL PENALTY PROCEEDING

Docket No. CENT 2023-0216 

A.C. No. 41-03401-578784 

Mine: Cooper Stone 
II. STIPULATIONS OF FACT

At hearing, the parties agreed to the following stipulations:

1. Billy Cooper Stone Co., Inc., at all times relevant to these proceedings, engaged in 

mining activities and operations at the Cooper Stone Mine (Mine I.D. 41-03401) 

(“Cooper Stone”) in Williamston County, Texas.

2. Billy Cooper Stone Co., Inc., is subject to the jurisdiction of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §§ et seq. (the “Mine Act”).

3. Billy Cooper Stone Co., Inc.’s mining operations affect interstate commerce within the 

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

4. Respondent is an “operator” as defined in § 3(d) of the Mine Act, 30 U.S.C. § 803(d), at 

the Mine where the contested citations in these proceedings were issued.

5. The Administrative Law Judge has jurisdiction over these proceedings pursuant to § 105 

of the Mine Act.

6. The individual whose signature appears in Block 22 of the contested citations at issue in 

this proceeding is an authorized representative of the United States of America’s 

Secretary of Labor, assigned to MSHA, and was acting in his official capacity when 

issuing the citations at issue in these proceedings.

7. The citations at issue in this proceeding were properly served upon Billy Cooper Stone 

Co., Inc., as required by the Mine Act.

8. The penalties associated with the violations in this docket if imposed, will not affect the 

Mine’s ability to remain in business.

9. The Respondent agrees to withdraw contest of Citation No. 9741859 and agrees to pay 

the assessed penalty of $905.00.

10. The Respondent agrees to withdraw contest of Citation No. 9741860 and agrees to pay 

the assessed penalty of $905.00.

11. The Respondent agrees to withdraw contest of Citation No. 9741861 and agrees to pay 

the assessed penalty of $905.00.

12. The Parties agree that Citation No. 9741864 be modified from “Fatal” injury to 

“Permanently Disabling”, and the penalty be modified from $905.00 to $407.00. For 

support of this modification, the Respondent asserts that the expected injury would not be 

as serious as alleged; the welder does not produce a high voltage. The Secretary under 

these specific circumstances agrees that the expected injury is more appropriately 

described as “Permanently Disabling.”
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13. The moving machine parts described in Citation No. 9741862 are required to be guarded 

to protect persons from contact per 30 C.F.R. § 56.14107(a). 

14. The area described in Citation No. 9741863 is a roadway, over which vehicular traffic 

may travel.

15. The area described in Citation No. 9741863 is within the property boundaries of Cooper 

Stone, LLC, 3786 FM 487, Jarrell, Texas 76537.

16. Cooper Stone abated Citation No. 9741863 by placing berms along the roadway.

Tr. 6.

III. FINDINGS OF FACT AND SUMMARY OF TESTIMONY

Billy Cooper Stone Co., Inc., operates the Cooper Stone Mine, a dimensional stone mine

located in Williamston County, Texas. Tr. 13, 18-19; Jt. Stip. 1. On April 19, 2023, MSHA 

Inspector Jason Hoermann arrived at the mine to conduct a regular EO-1 inspection. Tr. 21. 

While inspecting the site, he was accompanied by two members of mine management, Dan Trejo

and Dan Wilson. Tr. 23. 

While inspecting the rock chopper area, Hoermann issued a citation for a splitter that did 

not have the proper guards. Tr. 34; Ex. S-1-1. Hoermann testified at hearing that the lack of 

guards on the machine presented an entanglement hazard. Tr. 36. While he could not recall at 

hearing whether he determined if the splitter was locked out or not, he stated that he would 

generally make a note during his inspection process if a piece of machinery was locked out. Tr. 

40-41. His notes from this inspection did not state that the machine was locked out at the time he 

issued the citation. Tr. 41; Ex. S-3-2. Concerning the splitter’s condition, rock was lying on the 

belt, dirt debris was located on top of a catch table, and a hammer and gloves that are typically 

used to clean off the machine were nearby. Tr. 41-42; Ex. S-1-4, S-1-5, S-1-6. No guards were 

lying in the area or installed on the machine and there were no signs of repair. Tr. 42-43.

Hoermann testified that he would have issued the citation regardless of whether the splitter was 

locked out or not because this evidence indicated that it had been used in a condition without 

guards, exposing miners to a hazard. Tr. 41-43, 80. 

Dan Wilson, one of the members of mine management who accompanied Inspector 

Hoermann on April 19, 2023, testified for the Respondent. He testified that the splitter had not 

been in use on the day of the inspection, nor was he aware of its use in the 70 days prior to that 

when he started his employment with Cooper Stone. Tr. 128-29. He did not check on the day of 

the inspection if the splitter was tagged out or not but stated that the splitter had been deenergized. Tr. 132-33. He also testified that it is common practice for employees to lay 

equipment down wherever there is space when it is not needed, as an explanation for the tools 

located in the splitter’s vicinity. Tr. 131-32. Micah Flippen, owner of Cooper Stone, also testified 

that it was normal for employees to lay tools and other equipment “anywhere they wish[ed]” and 

that the company made every effort to ensure the machine was de-energized. Tr. 165-66. To 

demonstrate that the machine had been locked out at the time of the citation, the Respondent 
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submitted a photograph that could not be authenticated by Dan Wilson, who was present on the 

day of the inspection. Tr. 146-47; R-1. 

When traveling on roads to inspect another area of the mine, Hoermann issued a citation 

for a missing berm on a 40-foot section of roadway. Tr. 50. The road appeared to be heavily 

traveled with equipment tracks and was narrow at only fifteen feet with an eight-foot drop-off

leading to a pond. Tr. 51, 55-56. The inspector determined that this combination of conditions 

created a rollover hazard for vehicles traveling along the road. Tr. 57. Inspector Hoermann did 

not observe machinery operating on the road or mining equipment in the area but noted that there 

were signs that the area had been mined for dimensional stone, as evidenced by Vermeer saw 

cuts. Tr. 94-95, 109. He also testified that the area was moist where the berm had sloughed off. 

Tr. 95. Cooper Stone promptly terminated the violation by replacing the missing berm with

blocks. Tr. 61-62. 

Concerning the ownership of the road, Hoermann determined the road belonged to 

Cooper Stone because the road connected into a network of other roads and there was no signage 

or other indicators that demonstrated ownership by an entity other than Cooper Stone. Tr. 60-61.

He also stated that if a mine’s employees are traveling in an area, it is the mine’s responsibility to 

correct any hazard an employee may be exposed to. Tr. 84. The Respondent presented evidence 

that the road was under the control of Heartland Quarries, a separate entity that leased the road 

from Cooper Stone, and asserted that Heartland was responsible for its maintenance. Tr. 136-39, 

169-70, Ex. R-2, R-5. Mine employee Dan Wilson testified that Heartland Quarries had created 

new roads and manipulated roads that had been used by Cooper Stone in the past at its own 

discretion. Tr. 138-39. He admitted that the road where the citation was issued had been used by 

Cooper Stone in the past, but that it was not a normal travel way for Cooper Stone employees. 

Tr. 154-56, 161. Micah Flippen testified further that Heartland Quarries was in the process of 

stripping the area and had been manipulating the road and that Cooper Stone was not managing 

either the berm or the road at the time of the citation. Tr. 166, 169. Further, he testified that the 

largest piece of equipment owned by Cooper Stone is a “skid steer that is maybe six feet wide”

and that they would not build a road that was so much wider than their equipment. Tr. 167. He 

also stated that rain had occurred in the area recently, explaining the moist ground that the 

inspector observed at the location of the citation, and that it was probable that the berm had 

sloughed off due to this recent rain. Tr. 169.

IV. DISPOSITION

A. Citation No. 9741862

During his inspection on April 19, 2023, Hoermann issued 104(a) Citation No. 9741862, 

which alleged:

The head pulley for the discharge belt and the chopper chains were not guarded 

on the No. 3 Hydrasplit Chopper. The head pulley guards were missing[,] and the 

chain guard was lying on the ground. This condition exposes miners using the 

chopper to an entanglement hazard resulting in serious injuries. 
–6–

Ex. S-1-1; Tr. 35-36.

Hoermann designated the citation as a non-significant and substantial violation of 30 

C.F.R. § 56.14107(a) that was unlikely to cause an injury that could reasonably be expected to be

“permanently disabling,” would affect one miner, and was caused by Respondent’s moderate 

negligence. Ex. S-1-1. 

1. Fact of Violation

The Commission has long held that “[i]n an enforcement action before the Commission, 

the Secretary bears the burden of proving any alleged violation.” Jim Walter Res., Inc., 9 

FMSHRC 903, 907 (May 1987); Wyoming Fuel Co., 14 FMSHRC 1282, 1294 (Aug. 1992). The 

burden of showing something by a “preponderance of the evidence,” the most common standard 

in civil law and the standard applicable here, simply requires the trier of fact “to believe that the 

existence of a fact is more probable than its nonexistence.” RAG Cumberland Res. Corp., 22 

FMSHRC 1066, 1070 (Sept. 2000); Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 

(Nov. 1989). 

30 C.F.R. § 56.14107(a) states 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.” 

The Secretary asserts that it is undisputed by both parties that the machine did not have 

proper guards at the time of the citation and that there was no indication of ongoing repair.

Sec’y Br. at 10-11. Further, the inspector testified that there was substantial evidence that the

machine had been used without guards and that he would have issued the citation anyway 

regardless of whether the splitter was properly locked out. Tr. 41-43. Cooper Stone contends that 

the machine was in fact locked out and tagged out at the time the citation was issued but failed to 

present any testimonial evidence to that effect. Resp Br. at 1-2. While the Respondent submitted 

a photograph that appeared to show that the machine was locked and tagged out, this photograph 

could not be authenticated at hearing. Especially critical is the failure to establish when the 

splitter was locked and tagged out. Therefore, I cannot place much evidentiary weight on the

photograph. Tr. 146-47; Ex. R-1. I do place weight on and credit the inspector’s testimony that, 

even had the splitter been locked and tagged out, he would have issued the citation given the 

evidence it had been used without the presence of the required guards. Accordingly, I find that 

the Secretary has presented sufficient evidence to show that Cooper Stone violated 30 C.F.R. § 

56.14107(a).

2. Gravity

Hoermann designated the citation as unlikely to cause an injury that could be reasonably 

expected to result in a permanently disabling injury. Ex. S-1-1. He testified at hearing that he 

selected “unlikely” because the machine was not in use at the time of his inspection and the 

machine was a spare. Tr. 43. He selected permanently disabling because the pulley located on the 

machine could grab loose clothing or a hand, leading to crushing injuries and possible

amputation. Tr. 43-44. Because the splitter was not in immediate use, it was unlikely to cause 
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injury, so Hoermann marked the gravity as not significant and substantial. Tr. 44. Hoermann also 

testified that one person would be affected since one person would be injured by the head pulley 

at a time. Tr. 44. Respondent did not contest the gravity designations for this violation, and I find 

the designations made by the inspector to be appropriate.

3. Negligence

Under the Mine Act, operators are held to a high standard of care, and “must 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.” 30 C.F.R. § 100.3(d). 

MSHA’s regulations define reckless disregard as conduct which exhibits the absence of the

slightest degree of care, high negligence as actual or constructive knowledge of the violative 

condition without mitigating circumstances; moderate negligence as actual or constructive 

knowledge of the violative condition with mitigating circumstances; and low negligence as 

actual or constructive knowledge of the violative condition with considerable mitigating 

circumstances. 30 C.F.R. § 100.3: Table X.

Hoermann marked the violation as moderate negligence because the violation was visible 

and it was obvious that the machine was unguarded, and because the operator had been cited in 

the past “for another guarding violation.” Tr. 44-45. At the time of this citation, management

stated that they did not know that the cited machine was unguarded, and never mentioned that 

the machine was locked out or was down for repairs during the inspection. Tr. 45-46. Hoermann 

testified that the operator should have been aware that machine parts should be guarded, but the 

Assessed Violation History Report does not indicate any such prior machine related guarding 

violations. Tr. 45. Ex. S-4-1. Because there is no evidence of the operator’s previous history 

regarding such guarding violations, I lower the negligence from moderate to low. 

B. Citation No. 9741863

During his inspection on April 19, 2023, Hoermann issued 104(a) Citation No. 9741863, 

which alleged:

The roadway going to the upper bench at the main pit was missing a 40 ft section 

of berm. The roadway had an 8 ft drop off on the North side and tire tracks were 

observed within 2 ft from the edge. The roadway is used by mobile equipment to 

move blocks from the pit to the saw area. This condition exposes equipment 

operators to a [roll-over] hazard resulting in serious injuries.

Ex. S-2-1; Tr. 55-56.

Hoermann designated the citation as a significant and substantial violation of 30 C.F.R. §

56.9300(a) that was reasonably likely to cause an injury that could reasonably be expected to 

result in “lost workdays or restricted duty,” would affect one miner, and was caused by

Respondent’s moderate negligence. Ex. S-2-1. 
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1. Fact of Violation

30 C.F.R. § 56.9300(a) provides that “[b]erms or guardrails shall be provided and 

maintained on the banks of roadways where a drop-off exists of sufficient grade or depth to 

cause a vehicle to overturn or endanger persons in equipment.”

The Secretary argues that Cooper Stone violated this standard by failing to have a berm 

on a narrow road with an eight-foot drop-off. Owner operator Flippen testified that the road was 

not under Respondent’s control, and that the area was not actively being mined by Cooper Stone.

Instead, the road was being controlled and manipulated by Cooper Stone’s, lessee, Heartland 

Quarries. I find that the ownership of the road in this matter is irrelevant to the issuance of a 

citation, because if a mine’s employees are traveling on a road, per inspector Hoermann’s 

credited testimony it is that mine’s duty to ensure that the road is in compliance with all safety 

regulations. Tr. 84. I also note the parties stipulated to the fact that the road in question is within 

the property boundaries of Cooper Stone. Jt. Stip. 15. It is also undisputed that the road in 

question was missing a berm at the time of the citation. I affirm the finding that there was a 

violation of 30 C.F.R. § 56.9300(a).

2. Gravity and S&S

Hoermann designated the citation as reasonably likely to cause an injury that could 

reasonably be expected to result in “lost workdays or restricted duty.” Ex. S-2-1. He explained 

at hearing that the road was narrow and very compacted, which indicated heavy use. Tr. 57. He 

selected “lost workdays and restricted duty because the equipment would likely roll over on its 

side, leading to broken bones, sprains, contusions, and cuts. Tr. 57-58. The Respondent did not 

contest the gravity of the expected injury. I affirm the finding that the injury would likely result 

in lost workdays or restricted duty to one miner.

The citation was also designated as significant and substantial. To establish that a 

violation is significant and substantial, the Secretary of Labor must prove: (1) the underlying 

violation of a mandatory safety standard; (2) the violation was reasonably likely to cause the 

occurrence of the discrete safety hazard against which the standard is directed; (3) the occurrence 

of that hazard would be reasonably likely to cause an injury; and (4) there would be a reasonable

likelihood that the injury in question would be of a reasonably serious nature. Peabody Midwest 

Mining, LLC, 42 FMSHRC 379, 383 (June 2020). The Commission has explained that “the 

proper focus of the second step of the [S&S] test [is] the likelihood of the occurrence of the 

hazard the cited standard is designed to prevent.” Newtown Energy, Inc., 38 FMSHRC 2033, 

2037 n.8 (Aug. 2016). 

The Secretary has established a violation and therefore satisfies step 1. But the Secretary 

has failed to satisfy step 2 because she has not shown that the occurrence of a roll-over hazard is 

reasonably likely to occur to one of Respondent’s employees. There are too many intervening

factors to establish that the rollover hazard was reasonably likely, particularly concerning the

lack of evidence demonstrating Respondent’s use of the road. At the hearing, the inspector 

testified that he did not see equipment working in the area and that mine management were 

unaware of the berm’s condition. Tr. 59, 109. Further, Respondent presented testimony at trial 
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that indicates that the road was not in use at the time of the inspection. Tr. 166-69. Additionally, 

Cooper Stone contends that their equipment is significantly narrower than the road itself. Tr. 

167. The danger to Respondent’s employees presented by the missing berm remained relatively 

remote given these facts. Accordingly, the berm violation was not S&S and I lower the 

likelihood of injury to unlikely. 

3. Negligence

Hoermann determined that the violation was a result of Cooper Stone’s moderate 

negligence. It was visible and obvious that the 40-foot section of berm was missing, but the 

mitigating circumstances of nobody using the road at the time of inspection and the lack of 

reporting about the situation decreased the negligence to moderate. Tr. 59. Further, the inspector 

determined that the road belonged to Cooper Stone because the road tied into the network of 

roads leading to the pit and there was no signage or barriers to indicate the road belonged to

another entity. Tr. 60.

As stated above, it is the mine’s duty to ensure compliance with safety regulations if their 

employees are traveling on a road, regardless of the actual ownership of the road. However, 

given the considerable mitigating circumstances and the low frequency that Cooper Stone was 

using the road at the time of the citation, I reduce Cooper Stone’s negligence from moderate to

low for this citation.

 V. PENALTY

It is well established that Commission administrative law judges have the authority to 

assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5 

FMSHRC 287, 291 (Mar. 1983). The Act requires that in assessing civil monetary penalties, the 

Commission ALJ shall consider the six statutory penalty criteria:

(1) the operator’s history of previous violations, (2) the appropriateness of such penalty to 

the size of the business of the operator charged, (3) whether the operator was negligent, 

(4) the effect on the operator’s ability to continue in business, (5) the gravity of the 

violation, and (6) the demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation.

30 U.S.C. § 820(i).

For Citation No. 9741862, the Secretary proposed a regularly assessed penalty of 

$407.00. As discussed above, there is no evidence aside from the inspector’s unsupported 

testimony regarding the operator’s prior machine guarding violation history. It is undisputed that 

Cooper Stone is a small operator with approximately 30 employees. Tr. 21. The parties also 

stipulated that the penalty will not affect Cooper Stone’s ability to continue in business. Jt. Stip. 

8. As discussed above, I find that this non-S&S violation was unlikely to result in an injury 

causing permanently disabling injuries and was the result of Cooper Stone’s low negligence. 

Finally, Cooper Stone demonstrated good faith by quickly terminating the citation. In light of 

these considerations, I find that a penalty of $350.00 is appropriate.
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 For Citation No. 9741863, the Secretary has proposed a regularly assessed penalty of 

$1,350.00. The mine operator has had berm violations in the past. Ex. S-4-1. The parties 

stipulated that the penalty will not affect Cooper Stone’s ability to continue in business. Jt. Stip. 

8. As discussed above, I find that this is a non-S&S violation that was unlikely to result in an 

injury causing lost workdays or restricted duty and was the result of Cooper Stone’s low 

negligence. Finally, Cooper Stone Co., Inc., demonstrated good faith by quickly remedying the 

citation, even under the belief that they were not responsible for the missing berm. I have 

considered the representations and documentation submitted and conclude that a penalty of 

$600.00 is appropriate under the criteria set forth in Section 110(i) of the Act.

 IV.ORDER

It is hereby ORDERED that Citation No. 9741862 is AFFIRMED as modified to reduce 

the negligence to low and that Citation No. 9741863 is AFFIRMED, as modified to reduce the 

likelihood of injury or illness to “Unlikely”, reduce the negligence to low, and to remove the 

S&S designation. Billy Cooper Stone Co., Inc, is ORDERED to pay the Secretary the total sum 

of $950.00 within 40 days of this order.2

David P. Simonton 

Administrative Law Judge 

2 Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health Administration 

P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. Numbers. 
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Distribution: (Electronic and Certified mail) 

Maria Rich-DoByns, CLR, U.S. Department of Labor, MSHA, 1100 Commerce Street, Room 

462, Dallas, TX 75242, dobyns.maria@dol.gov

Micah H. Flippen, Owner, Cooper Stone LLC, P.O. Box 678, Jarrell, TX 76537, 

micah.flippen@cooperstone.com