i

April 2014

TABLE OF CONTENTS

COMMISSION DECISIONS

04-18-2014 WAKE STONE CORPORATION SE 2010-95-M Page 825

04-23-2014 SEQUOIA ENERGY, LLC KENT 2008-1059 Page 832

04-30-2014 MANALAPAN MINING COMPANY,

INC. 

KENT 2008-737 Page 849

COMMISSION ORDERS

04-08-2014 THE DOE RUN COMPANY CENT 2013-605-M Page 857

04-08-2014 BANNER BLUE COAL COMPANY VA 2013-350 Page 860

04-11-2014 MOUNTAINSIDE COAL COMPANY KENT 2013-739 Page 864

04-11-2014 ART WILSON COMPANY WEST 2013-973-M Page 867

04-11-2014 WARRIOR COAL, LLC KENT 2013-703 Page 870

04-11-2014 G & R MINERAL SERVICES, INC SE 2013-331-M Page 873

04-11-2014 BECKLEY DRILLING & BLASTING

SERVICES, INC.

WEVA 2013-761-M Page 876

04-11-2014 MEIGS MINE SERVICE, LLC WEVA 2013-1945 Page 879

04-25-2014 THE AMERICAN COAL COMPANY LAKE 2010-408-R Page 882

04-29-2014 FRED ESTRADA v. RUNYAN

CONSTRUCTION, INC.

CENT 2013-311-DM Page 886

ADMINISTRATIVE LAW JUDGE DECISIONS

04-03-2014 SIGNAL PEAK ENERGY, LLC WEST 2012-1063-R Page 889

04-04-2014 ELK RUN COAL COMPANY WEVA 2013-1180 Page 900
ii

04-08-2014 SEC. OF LABOR O/B/O CHARLES

RIORDAN v. KNOX CREEK COAL

CORP., a subsidiary of ALPHA

NATURAL RESOURCES, INC.

VA 2014-199-D Page 948

04-10-2014 PEABODY CABALLO MINING, LLC WEST 2012-1311 Page 954

04-14-2014 WOLF RUN MINING CO. WEVA 2008-1265 Page 961

04-16-2014 RONALD E. KEIM, III v. CORDERO

MINING, LLC

WEST 2013-537-D Page 963

04-16-2014 MANUEL A. GARZA v. HANSON

AGGREGATES, LLC

CENT 2013-307-DM Page 974

04-16-2014 BIG RIDGE, INC. LAKE 2013-66 Page 999

04-28-2014 SEC. OF LABOR O/B/O CHARLES

RIORDAN v. KNOX CREEK COAL

CORP.

VA 2014-199-D Page 1050

04-29-2014 MARTIN COUNTY COAL

CORPORATION

KENT 2012-615-R Page 1054

ADMINISTRATIVE LAW JUDGE ORDERS

04-03-2014 WEBSTER COUNTY COAL, LLC KENT 2013-510 Page 1073

04-04-2014 SEC. OF LABOR O/B/O JOSE VILLA v.

MOLYCORP MINERALS, LLC

WEST 2013-1097-DM Page 1076

04-07-2014 SEC. OF LABOR O/B/O RICHARD M.

ROBINSON and ROBERT DALE

HABERLOCK v. VULCAN

CONSTRUCTION MATERIALS, LP

KENT 2013-693-DM Page 1084

04-24-2014 SEC. OF LABOR O/B/O JOSHUA D.

BURKHART v. PEABODY MIDWEST

MINING, LLC

LAKE 2014-342-D Page 1095
iii

Review was granted in the following cases during the month of April 2014:

Secretary of Labor, MSHA v. Black Beauty Coal Company, Docket Nos. LAKE 2009-410, LAKE

2009-412, LAKE 2009-413, LAKE 2009-414, LAKE 2009-415. (Judge Manning, March 10, 2014)

Secretary of Labor, MSHA v. The American Coal Company, Docket Nos. LAKE 2010-759,

LAKE2010-408-R, LAKE 2010-409-R. (Judge Miller, March 3, 2014)

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

Secretary of Labor, MSHA v. Blue Diamond Coal Company, Docket Nos. KENT 2008-592, KENT

2008-784, KENT 2009-6. (Judge Paez, February 28, 2014)

Secretary of Labor, MSHA v. Power Fuels, LLC, Docket Nos. VA 2013-403, VA 2013-312-R, VA

2013-313-R, VA 2013-353-R. (Judge Koutras, March 10, 2014)

Secretary of Labor, MSHA v. Taft Production Company, Docket No. WEST 2012-1484-M. (Judge

Gilbert, February 26, 2014)

COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710

April 18, 2014 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

 

 ADMINISTRATION (MSHA) 

 v. 

WAKE STONE CORPORATION 

: 

: 

: 

: 

: 

: 

: 

: 

Docket No. SE 2010-95-M 

A.C. No. 31-02071-197617 

Before: Jordan, Chairman; Young, Cohen, Nakamura, Althen, Commissioners 

DECISION

BY THE COMMISSION: 

 

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

et seq. (2012), involves citations issued by the Secretary of Labor because horns on two of the 

mine operator’s vehicles did not work. The regulation relied on by the Secretary states that horns 

shall be maintained in functional condition.1 However, because the failures were discovered in 

pre-operational examinations that the mine supervisor insisted on conducting before the 

Secretary’s inspector started his inspection, the Administrative Law Judge vacated the citations. 

33 FMSHRC 1205, 1206-08 (May 2011) (ALJ). The Secretary filed a petition for discretionary 

review challenging the Judge’s ruling, and we granted that petition. 

Based on the plain meaning of the regulation, relevant Commission precedent, and the 

safety-promoting purposes of the Mine Act, we conclude that the Judge’s interpretation is 

erroneous. Accordingly, we reverse his decision regarding each citation, and remand for 

assessment of penalties. 

I. 

Factual and Procedural Background

 Wake Stone operates a crushed stone quarry in Battleboro, North Carolina. On July 14, 

2009, an inspector from the Mine Safety and Health Administration (“MSHA”) conducted an 

inspection of the quarry. He was accompanied by quarry Superintendent Chris Pons. During the 

 1

 30 C.F.R. § 56.14132(a) provides that “[m]anually-operated horns or other audible 

warning devices provided on self-propelled mobile equipment as a safety feature shall be 

maintained in functional condition.” 

36 FMSHRC Page 825
course of the inspection, the inspector asked to examine a Caterpillar 345 B excavator and a 

Komatsu D65Px dozer. Although neither piece of equipment had been in operation during the 

shift, the two pieces of equipment were not tagged out and were parked in production areas. 

Superintendent Pons insisted that the vehicles be taken through the pre-operational examination 

required under section 56.14100(a) before being operated for the inspection.2 The MSHA 

inspector acquiesced to Pons’ demand. 33 FMSHRC at 1205; see also S. Br. at 1. 

During the examination, it was discovered that the service horns on both vehicles did not 

work. 33 FMSHRC at 1205. MSHA then issued Citation Nos. 6512366 and 6512367 to Wake 

Stone, alleging violations of 30 C.F.R. § 56.14132(a) for failure to maintain the service horns in 

functional condition. Wake Stone contested the citations, and the parties filed cross-motions for 

summary decision. 

The Judge vacated both citations, rejecting the Secretary’s assertion that the plain 

meaning of section 56.14132(a) dictates that if a horn fails to function, it has not been maintained 

and a violation has occurred. Id. at 1206-08. He found that the Secretary’s interpretation was 

“misguided” and reasoned that one of the few ways an operator can determine whether a horn is 

malfunctioning is by trying the horn. Id. at 1207. The Judge stated that “[s]ection 56.14100 

[which requires mobile equipment operators to pre-shift their vehicles] was created to catch a 

malfunctioning vehicle before it has the opportunity to endanger miners’ lives.” Id. He 

concluded that applying the Secretary’s interpretation would trivialize the effect of section 

56.14100 and diminish the operator’s motivation and incentive to conduct a thorough 

examination of equipment prior to placing it in service. Id. The Judge declined to “place strict 

liability in this situation” because he believed it would discourage thorough pre-shift 

examinations. Id. at 1208. He concluded that “if an operator discovered a problem with a horn 

during a pre-shift inspection and subsequently corrected the problem, then the operator has 

maintained the horn.” 33 FMSHRC at 1207 (emphasis in original). 

II. 

Disposition

A. The Plain Meaning of the Standard

The issue before us involves the interpretation of section 56.14132(a) of the Secretary’s 

standards, which provides that: 

Manually-operated horns or other audible warning devices 

provided on self-propelled mobile equipment as a safety feature 

shall be maintained in functional condition. 

30 C.F.R. § 56.14132(a). 

2

 30 C.F.R. § 56.14100(a) provides that “[s]elf-propelled mobile equipment to be used 

during a shift shall be inspected by the equipment operator before being placed in operation on 

that shift.” 

36 FMSHRC Page 826
Where the language of a regulatory provision is clear, the terms of that provision must be 

enforced as they are written unless the regulator clearly intended the words to have a different 

meaning or unless such a meaning would lead to absurd results. Jim Walter Res., Inc., 28 

FMSHRC 983, 987 (Dec. 2006) (quoting Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 

1987) (citation omitted)); Alan Lee Good, 23 FMSHRC 995, 997 (Sept. 2001); Lopke Quarries, 

Inc., 23 FMSHRC 705, 707 (July 2001); Jim Walter Res., Inc., 19 FMSHRC 1761, 1765 (Nov. 

1997). 

The Secretary argues that the plain meaning of section 56.14132(a) requires that horns 

always be maintained in functional condition. We agree. The plain language of the standard 

requires that horns or other audible warning devices must function at all times unless the 

equipment has been taken out of service for repair. The Commission has held that the term 

“‘maintain’ [means] that warning devices shall be capable of performing on an uninterrupted 

basis and at all times. . . . [and] imposes a continuing responsibility on operators to ensure that 

safety alarms do not fall into a state of disrepair.” Nally & Hamilton Enter., Inc., 33 FMSHRC 

1759, 1763 (Aug. 2011); see also Sedgman, 28 FMSHRC 322, 329 (June 2006); Jim Walter Res., 

Inc., 28 FMSHRC 983, 987 (Dec. 2006); Jim Walter Res., Inc., 19 FMSHRC 1761, 1765 (Nov. 

1997). Additionally, the term “functional” in section 56.14132(a) means to be “capable of 

performing” or “operative.” See Nally, 33 FMSHRC at 1763. 

It is undisputed that the service horns on both the Caterpillar 345 B excavator and the 

Komatsu D65Px dozer were not functioning when the MSHA inspector attempted to examine the 

vehicles. 33 FMSHRC at 1205. Because the service horns were defective at the time of the 

inspection and the equipment had not been tagged out of service, we conclude that the horns 

were not being “maintained in functional condition” as required by the language of section 

56.14132(a). 

Contrary to the Judge’s decision not to “place strict liability in this situation” (33 

FMSHRC at 1208), section 110(a) of the Act, 30 U.S.C. § 820(a), imposes strict liability upon 

operators who are found in violation of the Act. See Ames Construction, Inc., 33 FMSHRC 1607, 

1611 (July 2011), aff’d, 676 F.3d 1109 (D.C. Cir. 2012). Imposing strict liability under the Mine 

Act is not optional – it is mandatory. Therefore, we reject the idea that Wake Stone’s strict 

liability under the maintenance standard is somehow negated by compliance with the preoperational standard. See 33 FMSHRC at 1208. According to the plain meaning of section 

56.14132(a) and the principles of strict liability as applied to this regulation, the Secretary need 

only prove that the service horns were not “maintained in functional condition.” 

B. The Effect of the Pre-operational Inspection Requirement 

The Judge held that the maintenance requirement of section 56.14132(a) must be read in 

concert with the pre-operational inspection requirement of section 56.14100(a). This 

interpretation is inconsistent with the plain meaning of the standard and thus is an impermissible 

construction. Section 56.14132(a) is devoid of any language that makes its enforcement 

dependent on another regulation. “To read a limitation into the [regulation] that has no basis in 

the [regulatory] language” would be impermissible. See Thunder Basin Coal Co. v. FMSHRC, 56 

F.3d 1275, 1280 (10th Cir. 1995). 

36 FMSHRC Page 827
In Alan Lee Good, the operator similarly argued that the functional braking system 

requirement of section 56.14101(a)(3) was applicable only to “‘self-propelled’ mobile equipment 

to be used during a particular shift” and was qualified by the pre-operational inspection and 

correction requirements of section 56.14100. 23 FMSHRC at 997. The Commission categorically 

rejected this approach, reasoning that “[s]ection 56.14101 is clearly a different standard from 

section 56.14100, with separate requirements.” Id. 

The same is true here. Sections 56.14100(a) and 56.14132(a) are separate and 

independent regulations, each with its individual mandate. The text of section 56.14100(a) 

clearly states that it applies to equipment “to be used during a shift” and requires inspection of 

said equipment “before being placed in operation.” In contrast, section 56.14132(a) does not 

contain language limiting its application to equipment only “to be used during a shift” or to 

equipment that has or has not been “placed in operation.” 

Accordingly, we conclude that the Judge’s decision to construe the language of section 

56.14132(a) in concert with the language of section 56.14100(a) was in error. 

C. The Contention that the Vehicles Were Not in Use 

We also reject Wake Stone’s argument that a violation did not occur because the vehicles 

had not been in use when the defects were discovered, thus entitling it to perform a preoperational examination prior to the MSHA inspection. The purpose of section 56.14132(a) is to 

shield miners from the hazards posed by operating defective equipment. See 30 C.F.R. § 56.1. 

Absent specific limiting language, the Commission has consistently determined that standards 

requiring maintenance in functional condition are enforceable when the cited equipment is not in 

actual use, unless it has been removed from service. Alan Lee Good, 23 FMSHRC at 997; see

Mountain Parkway Stone, Inc., 12 FMSHRC 960, 963 (May 1990); Ideal Basic Indus., Cement 

Div., 3 FMSHRC 843, 844-45 (Apr. 1981). 

In Ideal Basic, the Commission reversed a judge’s finding that 30 C.F.R. § 56.9-2, which 

requires that defects be corrected before the equipment is placed in use, had not been violated 

because the defective coupling in question had not been used. 3 FMSHRC at 843. Finding the 

Judge’s “interpretation of the standard too narrow,” we held that “use of a piece of equipment 

containing a defective component that could be used and which, if used, could affect safety, 

constitutes a violation.” Id. at 844. The Commission further stated that if defective equipment 

affecting safety that has not been “rendered inoperable” “is located in a normal work area, fully 

capable of being operated, that constitutes ‘use.’” Id. at 845; see also Alan Lee Good, 23 

FMSHRC at 997 (reinforcing the rule that equipment not tagged out of operation and parked for 

repairs must be maintained in functional condition, “whether or not the equipment is to be used 

during the shift.”); Mountain Parkway, 12 FMSHRC at 963 (relying on Ideal Basic and 

interpreting the term “used” broadly to include equipment that was parked in the mine in turnkey condition and not removed from service). 

In the instant case, the excavator was located in the rockbreaker area of the pit, and the 

dozer was parked in the pit area of the mine. See W.S. Answer to Sec’y’s 1st Req. for Adm. at 2. 

Wake Stone does not contend that either vehicle had been locked and tagged out of service when 

the MSHA inspector began his inspection. Because the defective vehicles were located in a 

36 FMSHRC Page 828
normal work area, were capable of being used, and had not been locked and tagged out, we 

conclude that the dozer and excavator were in “use” at the time of inspection. 

We emphatically reject the Judge’s notion that sustaining these citations for failing to 

maintain equipment that is in a work area somehow trivializes section 56.14100(a). The operator 

is not being punished for finding defects during a pre-operational inspection. It is being cited for 

failing to maintain the horns in an operative condition. Thorough and diligent pre-operational 

inspections are a key component of assuring that safety equipment will be maintained and 

functional when equipment is in use. No operator should read this decision as creating anything 

other than an incentive to conduct thorough pre-operational inspections in order to minimize the 

chance that equipment will be at the job site in a defective condition. 

Indeed, it would be odd if operators could insist on a section 56.14100 pre-operational 

examination upon learning of an impending MSHA inspection, and thereby avoid liability under 

section 56.14132(a). The strict liability nature of the Act does not allow for this sort of 

gamesmanship.3 As we have previously stated, restricting an operator’s liability to hazards 

identified in pre-shift examinations, or in this case, pre-operational examinations, runs counter to 

the Act’s safety objectives and would lead to perverse incentives. Nally, 33 FMSHRC at 1764. 

Instead, requiring that operators continuously keep machinery in operational condition 

encourages more vigilance with regard to instituting and enforcing effective maintenance 

procedures. Id.

4

 

Accordingly, we find that the Judge’s interpretation of 30 C.F.R. § 56.14132(a) is invalid 

and conclude that Wake Stone violated the standard when it failed to “maintain in functional 

condition” the horns on both the excavator and the dozer. Because we find the standard’s 

language to be plain and unambiguous, we do not reach the Secretary’s deference argument or 

the operator’s notice argument. See Exportal Ltda v. U.S., 902 F.2d 45, 50 (D.C. Cir. 1990); Jim 

Walter Res., 28 FMSHRC at 987; Jim Walter Res., 19 FMSHRC at 1765; Cannelton Indus., Inc., 

26 FMSHRC 146, 151 (Mar. 2004); Bluestone Coal Corp., 19 FMSHRC 1025, 1031 (June 1997) 

(holding that when the language of the standard is found to be clear and unambiguous, fair and 

adequate notice to operators is provided). 

3

 We note that the operator here only asserted the requirements of section 56.14100(a) 

after the MSHA inspector announced his intention to inspect the vehicles. 

4

 Wake Stone’s contention that the Secretary’s interpretation of the standard will lead to 

absurd results, because the Secretary will be required to issue citations when malfunctioning 

horns are noted in pre-operational examination records, is likewise without merit. W.S. Br. at 11-

15. The citations were issued based on the condition of the equipment at the time of the

inspection. Further, “as a general matter, the Secretary does not automatically issue a citation 

based solely on information in examination records.” S. Reply Br. at 4; see also Examination of 

Work Areas in Underground Coal Mines for Mandatory Health or Safety Standards, 77 Fed. 

Reg. 20700-02, 20703 (2012) (discussing the final rule on examinations of work areas in 

underground coal mines and stating that “[g]enerally, at the beginning of an inspection, an 

inspector will review an operator’s examination records). As is the case under the existing 

standard, recording a violation does not automatically result in a citation.”). 

36 FMSHRC Page 829
III. 

Conclusion

For the reasons set forth herein, we reverse the Judge’s finding that Wake Stone did not 

violate 30 C.F.R. § 56.14132(a) and remand the case to the Judge for assessment of penalties. 

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen

William I. Althen, Commissioner 

36 FMSHRC Page 830
Distribution 

Mark N. Savit, Esq. 

Jackson Lewis, LLP 

950 17th Street, Suite 2600 

Denver, CO 80202 

Mark.savit@jacksonlewis.com

Donna Vertrano Pryor, Esq. 

Jackson Lewis, LLP 

950 17th Street, Suite 2600 

Denver, CO 80202 

Donna.Pryor@jacksonlewis.com

Robin Rosenbluth, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Administrative Law Judge L. Zane Gill 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20004 

36 FMSHRC Page 831
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

April 23, 2014 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

SEQUOIA ENERGY, LLC 

: 

: 

: 

: 

: 

: 

: 

 Docket No. KENT 2008-1059 

 A.C. No. 15-12428-149534-02 

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

DECISION

BY: Jordan, Chairman; Cohen and Nakamura, Commissioners 

 At issue in this case is whether a Commission Administrative Law Judge erred in his 

assessment of civil penalties for four citations issued to Sequoia Energy, LLC, relating to mobile 

equipment defects. 32 FMSHRC 1361 (Sept. 2010) (ALJ). The case arises under the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”). We conclude 

that the Judge erred in his assessment of the four penalties by reducing those penalties based 

upon his consideration of prior penalties that were proposed pursuant to a different penalty 

regulation. Accordingly, we vacate those penalties and remand them to the Judge for 

reassessment. On remand, the Judge is also instructed to reconcile seemingly unsupported or 

inconsistent findings with respect to the four penalties. 

I. 

Factual and Procedural Background

 On February 8, 2008, an inspector with the Department of Labor’s Mine Safety and 

Health Administration (“MSHA”), Argus Brock, inspected Sequoia’s coal preparation plant in 

Harlan, Kentucky. 32 FMSHRC at 1362. As a result of the inspection, Inspector Brock issued 

various citations, including the four at issue in this proceeding. All four citations related to 

defects on trucks that hauled rock material from refuse bins at the plant to a refuse pile near the 

plant. Id. at 1362, 1363. 

36 FMSHRC Page 832
A. The Judge’s consideration of prior penalties 

With respect to all four penalties, the Judge “note[d] parenthetically” that previous 

penalties concerning Sequoia’s failure to correct defects on mobile equipment had ranged from 

$60 to $400 compared to the range of $3,996 to $5,503 currently proposed for the four citations. 

Id. at 1372. The Judge recognized the Secretary’s concern that Sequoia needs to display greater 

efforts in maintaining its equipment but stated that his assessments, which were “significantly 

greater” than previous assessments, adequately addressed the Secretary’s concern. Id.

B. Citation No. 7496260: Exhaust pipe and headlights

MSHA Inspector Brock issued Citation No. 7496260, which alleged a significant and 

substantial (“S&S”)1 violation of section 77.404(a),2 because he observed that a refuse truck’s 

exhaust pipe had a leak that permitted carbon monoxide to enter the driver’s compartment. Id. at 

1365-66. The citation was modified to incorporate allegations from a separate citation (which 

was then vacated) that the high and low beam headlights on the right side of the truck were also 

inoperative. Id. at 1365 & n.2. The inspector indicated in the citation that the operator’s degree 

of negligence was moderate. Gov’t Ex. 4. 

The Judge affirmed the allegations of violation, S&S, and moderate negligence alleged 

by the inspector on the citation. 32 FMSHRC at 1366-67. However, the Judge assessed a civil 

penalty of $1,400, rather than the penalty of $4,689 proposed by the Secretary of Labor because 

he reasoned that there were several mitigating factors relating to the degree of gravity that 

warranted the reduction. Id. The Judge found that the hazard caused by the truck’s inoperative 

right headlights was mitigated by supplemental lighting at the refuse bins and at the refuse pile 

and on the truck. Id. at 1367. Regarding the defective exhaust pipe, he stated that the inspector 

did not contend that the condition was noted by pre-shift examiners, and that there was no visible 

hole that made the condition visibly “readily apparent.” Id. 

C. Citation No. 7496262: Mirrors and headlights

Inspector Brock issued Citation No. 7496262, which alleged an S&S violation of section 

77.404(a), because he observed that a refuse truck had a broken upper left side view mirror and a 

missing lower left side view mirror. Id. at 1368. The citation was modified to incorporate 

allegations from a separate citation (which was then vacated) that the high and low beam 

headlights on the right side of the truck were also inoperative. Id. & n.3. The inspector indicated 

in the citation that the operator’s degree of negligence was moderate. Gov’t Ex. 7. 

1

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

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

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

2

 30 C.F.R. § 77.404(a) provides, “Mobile and stationary machinery and equipment shall 

be maintained in safe operating condition and machinery or equipment in unsafe condition shall 

be removed from service immediately.” 

36 FMSHRC Page 833
 The Judge affirmed the allegations of violation, S&S, and moderate negligence alleged in 

the citation. 32 FMSHRC at 1369. However, the Judge assessed a penalty of $1,200, rather than 

the proposed penalty of $4,689 because, similar to Citation No. 7496260, he found that there 

were significant mitigating factors relating to gravity. Id. at 1368, 1369. The Judge stated that 

the same mitigating factors regarding headlights with respect to Citation No. 7496260 were 

applicable to Citation No. 7496262. Id. at 1369. He further noted evidence that the upper mirror 

was still functional, although it was cracked. Id. The Judge also determined that the lower 

mirror was used to look at the rear tires, and that the missing lower mirror would not normally be 

relied upon because the truck did not dump in the vicinity of an elevated area. Id. 

D. Citation No. 7496263: Accumulation of oil on hood

 Inspector Brock issued Citation No. 7496263, alleging an S&S violation of 30 C.F.R. 

§ 77.11043 because he observed combustible material, in the form of hydraulic oil, accumulated 

on the hood of the refuse truck that was also the subject of Citation No. 7496262. Id. at 1370. 

The inspector indicated in the citation that the operator’s degree of negligence was moderate. 

Gov’t Ex. 10. 

 The Judge affirmed the violation and that the violation was S&S. 32 FMSHRC at 1370-

71, 1374. He determined that the leaking combustible hydraulic oil in proximity to very hot 

engine components constituted a hazardous condition, and that the degree of hazard was 

accentuated by the unpredictability of the directional flow of the oil. Id. at 1371. The Judge also 

recognized that the Secretary alleged that the condition had existed for several shifts and had 

been noted in the pre-shift examination book. Id. He further found that the condition was 

obvious in that it was readily observable on the hood of the truck. Id. The Judge concluded that 

the evidence reflects “at least a moderately high degree of negligence.” Id. He then assessed a 

penalty of $3,500 rather than the penalty of $5,503 proposed by the Secretary. Id. at 1370, 1371. 

E. Citation No. 7496266: Inoperative backup alarm

 Inspector Brock issued Citation No. 7496266, alleging a violation of 30 C.F.R. 

§ 77.410(c)4 because the back-up alarm on a refuse truck was not maintained in a functioning 

condition. Id. at 1371. The backup alarm had been noted as non-functional for several months. 

Id.; Tr. 291-92, 309-10. Sequoia’s mechanic testified that the alarm was covered in mud, which 

muted its sound. Tr. 130-31, 317. He stated that it was a recurring problem and that he 

periodically cleaned the alarms, although he did not indicate that he did so in the pre-shift 

reports. Tr. 319-20. The mechanic stated that, after the citation had been issued, he repositioned 

 3

 30 C.F.R. § 77.1104 provides, “Combustible materials, grease, lubricants, paints, or 

flammable liquids shall not be allowed to accumulate where they can create a fire hazard.” 

4

 30 C.F.R. § 77.410(c) provides, “Warning devices shall be maintained in functional 

condition.” 

36 FMSHRC Page 834
the alarm so that it would not be filled with mud. Tr. 319-20, 322-23. The inspector indicated in 

the citation that the operator’s degree of negligence was high. Gov’t Ex. 11. 

The Judge affirmed the allegations of violation and S&S. 32 FMSHRC at 1371-72, 1374. 

However, he reduced the degree of negligence associated with the violation from high to 

moderate. Id. at 1372. The Judge reasoned that the alarm was exposed to mud, which prevented 

it from working, and that it was cleaned from time to time, although Sequoia’s mechanic did not 

report the cleaning. Id. Concluding that the muddy conditions were a mitigating factor, he 

assessed a penalty of $2,200, rather than the penalty of $3,996 proposed by the Secretary. Id. at 

1371, 1372. 

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

of the four penalties. The Commission granted the petition. 

II. 

Disposition

A. Consideration of past penalty amounts

Commission Judges are accorded broad discretion in assessing civil penalties under the 

Mine Act. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). Such discretion is not 

unbounded, however, and must reflect proper consideration of the penalty criteria set forth in 

section 110(i), 30 U.S.C. § 820(i), and the deterrent purposes of the Act. Id. 

In his penalty assessment, the Judge considered MSHA’s standard Assessed Violation 

History Report, which covered penalties assessed to Sequoia from February 8, 2006, through 

February 7, 2008. Gov’t Ex. 12. The information contained in the report is limited to the 

standard violated, the date of the occurrence, whether the violation was S&S, the type of 

enforcement action, the proposed penalty amount, and the amount paid. The Judge referred to 

the report in order to compare past penalty amounts with the amount of subject penalties 

proposed by the Secretary, in order to arrive at the appropriate amount of penalty that he should 

assess for the subject violations. 32 FMSHRC at 1372; Tr. 350-51. 

We conclude that the Judge abused his discretion in assessing the four penalties.5

 The 

Judge failed to recognize in his decision that the four proposed penalties were significantly 

impacted by the Secretary’s amendments to 30 C.F.R. Part 100, which sets forth the Secretary’s 

5

 Our colleagues assert that we should have addressed the “real issue in dispute” – the 

Secretary’s argument that the Judge acted improperly by considering past penalty amounts 

assessed against Sequoia. Slip op. at 11, 13. However, we need not reach that issue because we 

find error in the narrower issue of the manner in which the Judge considered the past penalty 

assessments. 

36 FMSHRC Page 835
criteria and procedures for proposing civil penalties.6

 In March 2007, the Secretary amended 

Part 100 to bring about “an across-the-board increase in penalties.” 72 Fed. Reg. 13592 (Mar. 

22, 2007). The higher penalties under the amended scheme became effective on April 23, 2007. 

Thus, a lower penalty scheme was in effect for many of the prior penalties relied upon by the 

Judge, but the four proposals at issue were all subject to a higher penalty scheme. Indeed, some 

of the prior penalties relied on by the Judge in the Assessed Violation History Report (Gov’t Ex. 

12) were “single assessments” of $60, which are not used under the amended system.7

 

 6

 Our colleagues suggest that when we hold in our opinion that the Judge “failed to 

recognize” the impact of the Secretary’s amendments to the Part 100 regulations, we are saying 

that the Judge failed to discuss or think about those amendments. Slip op. at 11-12, 16 n.10. 

However, the Judge’s error was not in the nature of a failure to think about the Part 100 

amendments. Rather, the Judge failed to recognize that those amendments, which significantly 

raised Mine Act penalties, rendered previous penalties essentially irrelevant for purposes of 

comparison to present penalties. 

 The Judge’s failure to recognize that the four proposed penalties were impacted 

by the amendments to Part 100 is evident from the Judge’s treatment of the prior penalties in 

assessing the four penalties at issue. At the conclusion of the hearing, the Judge described his 

assessment of the penalties: 

And what I’m trying to do here is somehow come to a 

resolution that is – each side gets sort of half a loaf or whatever. 

Because if you look at the history of violations, these were a lot of 

similar violations that are at issue in this case and the proposed 

penalties . . . that were paid were somewhere between $60 

and 2 or $300. So occasionally there was a $400 penalty, but 

nothing of the magnitude of the total 40,000 penalty and $4,600 for 

each citation, 4,689. So in reaching this conclusion, for example, 

of the 1,400 and 1,200 . . . I want to note that I’m doing it in the 

context of, I’m significantly raising the previous penalties, but I’m 

not raising them as much as the . . . Mine Safety and Health 

Administration has raised them. 

Tr. 350-51. Thus, it is clear that the Judge used the irrelevant past penalties as a baseline 

for his present assessments. This is exemplified in Citation No. 7496263, where the Judge raised 

the negligence finding from “moderate” to “at least moderately high” but lowered the penalty 

from $5,503 to $3,500. 

7

 We note for illustrative purposes that if, for instance, the former penalty scheme had 

been used to calculate a proposed penalty for the violation set forth in Citation No. 7496263, the 

proposed penalty would have been $629 rather than the proposed penalty of $5,503 under the 

amended scheme. 

36 FMSHRC Page 836
The four proposed penalties in this case precisely reflect amended Part 100, specifically 

the tables contained in 30 C.F.R. § 100.3.8

 Obviously, a Commission Judge is not bound by 

MSHA’s proposed assessments of penalties. Sellersburg Stone Co., 5 FMSHRC 287, 291 (Mar. 

1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). However, the fact that MSHA’s proposed 

assessments in this case were derived from its Part 100 standards shows that the proposed 

penalties were determined in a manner consistent with the regulations, given MSHA’s factual 

findings as to Sequoia’s size, history of previous violations, negligence, the gravity of the 

violations, and the operator’s good faith in achieving compliance. 

Moreover, as argued by the Secretary, the Assessed Violation History Report relied upon 

by the Judge (Gov’t Ex. 12) does not contain sufficient information to have permitted a 

meaningful comparison between the violations described in the document and the violations in 

this case, for purposes of comparing prior penalties. The Assessed Violation History Report 

does not indicate the precise levels of negligence and gravity, which were the factors upon which 

the Judge based his penalty reductions in this case. Thus, the report is only useful as an 

overview of an operator’s history of previous violations.9

For these reasons, we conclude that the Judge abused his discretion in assessing the four 

penalties at issue. Accordingly, we vacate the penalties and remand for reassessment. 

In addition to his use of past assessments, the Judge’s analysis of the four citations raises 

other issues which we instruct the Judge to address on remand. Those issues are described in the 

sections that follow. 

B. Citation No. 7496260: Exhaust pipe and headlights

With respect to Citation No. 7496260, the Judge concluded that there were “significant 

mitigating circumstances related to the degree of gravity” that warranted a reduction in the civil 

8

 The proposed penalties of $4,689 in Citation Nos. 74966260 and 7496262 are based on 

a total of 108 penalty points under Table XIV (which converts to $5,211) with a 10% reduction 

for good faith in abating the violation. The proposed penalty of $5,503 in Citation No. 7496263 

is based on a total of 110 penalty points (which converts to $6,115) with a 10% reduction for 

good faith in abating the violation. The proposed penalty of $3,996 in Citation No. 7496266 is 

based on a total of 106 penalty points (which converts to $4,440) with a 10% reduction for good 

faith in abating the violation. 

9

 Our colleagues suggest that we are impugning the use of MSHA Assessed Violation 

History Reports by Commission Judges in assessing penalties. Slip op. at 12-13. Their 

characterization of our views is incorrect. These Reports are routinely used by Judges in 

determining an operator’s history of previous violations for purposes of section 110(i) of the Act. 

Their use is proper in that the Reports provide information about the dates of violations, the 

standards violated and whether the violation was S&S. See Cantera Green, 22 FMSHRC 616, 

623-24 (May 2000). All we are saying here is that the information about an operator’s previous 

penalties contained in the Assessed History Violation Report is not particularly useful because of 

the limited detail provided. 

36 FMSHRC Page 837
penalty proposed by the Secretary. 32 FMSHRC at 1367. We conclude that there is 

considerable evidence in the record that appears to contradict the Judge’s findings that mitigating 

circumstances existed with respect to the defective exhaust pipe. In assessing whether a finding 

is supported by substantial evidence, the record as a whole must be considered including 

evidence that “fairly detracts” from the finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5 

(Jan. 1997) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). 

The Judge’s discussion of mitigating circumstances for this violation is confusing. Under 

the heading “Degree of Negligence,” he stated that the inspector found a moderate degree of 

negligence. 32 FMSHRC at 1367. He set forth factors relevant to the operator’s knowledge that 

a defect existed (which is pertinent to whether the operator failed to meet the appropriate 

standard of care to avoid a violation). But contrary to the Judge’s finding that the defective 

exhaust pipe had not been noted by preshift examiners, Inspector Brock testified that the 

condition of the exhaust pipe had been noted in pre-operation checklists. Tr. 74, 83. The 

inspector also testified that the foreman had written in a notebook that he carried with him that 

the exhaust pipe was defective. Tr. 74, 85. This evidence was not rebutted by the operator. 

The Judge also found that although the defect in the exhaust pipe was apparent when the 

truck engine was started, there was no visible hole in the exhaust system that made the condition 

readily apparent. 32 FMSHRC at 1367. However, contrary to his finding that the condition was 

not readily apparent, as the Judge recognized, a layer of soot had built up on the truck because of 

the fumes caused by the faulty exhaust pipe. Id. at 1365, 1366; Tr. 57. Indeed, as the Judge 

further found, Sequoia’s mechanic admitted “that the leak caused soot to accumulate on the 

frame of the truck.” 32 FMSHRC at 1366; Tr. 145-46. There is also evidence that the exhaust 

could be smelled. Tr. 118. On remand, we instruct the Judge to reconcile this evidence with his 

finding that there were several mitigating factors in regards to negligence.10

C. Citation No. 7496262: Mirrors and headlights

The Judge found that there were significant mitigating circumstances related to the 

degree of gravity that warranted reducing the civil penalty proposed for the cracked upper side 

mirror and missing lower side mirror described in Citation No. 7496262. 32 FMSHRC at 1369. 

The Judge stated that although the upper side mirror was cracked, it was still functional. Id. He 

also stated that these haulage trucks were not dumping in the vicinity of an elevated area, and 

that the lower mirror, which was adjusted to view the position of the rear tires, “is not normally 

relied on.” Id. 

There is considerable evidence in the record that appears to contradict the Judge’s finding 

that the bottom mirror would not be used. Inspector Brock testified that a driver would use the 

bottom mirrors to see the truck’s tires when backing up, and that a driver would need to see the 

10 We note that when Inspector Brock found “moderate” negligence, this finding 

recognized the existence of mitigating circumstances. See 30 C.F.R. § 100.3(d), Table X 

(defining “moderate negligence” as “[t]he operator knew or should have known of the violative 

condition or practice, but there are mitigating circumstances”). 

36 FMSHRC Page 838
bottom back of the tires when backing under the refuse bin. Tr. 156-57, 158. On the date of the 

inspection, the trucks were using the top refuse bin, which was the bin that trucks had to back 

under in order to use. Tr. 159-60. The inspector also testified that the cited truck traveled at 

night, on steep grades, up and down hills, and around other equipment and miners, and that the 

area of the refuse site was wet and slick. Tr. 71-72, 158-60, 173, 178-79. He stated that a driver 

would need to back up several times during any shift and put the truck in reverse. Tr. 160-61. 

On remand, the Judge is instructed to reconcile his gravity findings with such evidence. 

The Judge’s finding that there were mitigating circumstances relating to gravity also 

appears inconsistent with his holding that the cracked and missing side view mirrors, alone, 

provided an adequate basis for designating the violation as S&S. 32 FMSHRC at 1369. The 

Judge reasoned that side view mirrors protect both the truck operator and miners who may be 

exposed to the risk of being struck while working in proximity to the truck. Id. He also found 

that it was reasonably “likely that this haulage truck [would] be operated under circumstances 

that require a lower side view mirror to ensure that the vehicle does not back through a berm 

installed in an elevated area.” Id. The Judge did not adequately explain his seemingly 

inconsistent gravity and S&S findings and is instructed to do so on remand. 

D. Citation No. 7496263: Accumulation of oil on hood

With respect to the violative hydraulic oil accumulation alleged in Citation No. 7496263, 

the Judge affirmed the S&S allegations, noted the “serious gravity” of the violation, and raised 

the level of negligence cited from moderate to “at least [] moderately high.” Id. at 1371. The 

Judge characterized the violation as “the proverbial ‘accident waiting to happen’” and noted that 

the condition was obvious in that it was readily observable on the hood of the truck and had 

existed for several shifts. Id. Nonetheless, the Judge assessed a penalty of $3,500, rather than 

the penalty of $5,503 proposed by the Secretary, a reduction of 36%. Id. at 1370, 1371. 

The Commission has repeatedly recognized that substantial deviations from the 

Secretary’s proposed assessments must be adequately explained using the section 110(i) criteria. 

Cantera Green, 22 FMSHRC at 620-21 (citations omitted). The Commission has stated that a 

Judge “need not make exhaustive findings but must provide an adequate explanation of how the 

findings contributed to his penalty assessments.” Mining & Property Specialists, 33 FMSHRC 

2961, 2964 (Dec. 2011) (citations omitted). 

Here the Judge made no findings that would explain a significant reduction in the penalty 

amount from that proposed by the Secretary. In fact, the reduction seems inconsistent with the 

Judge’s finding that there was a higher degree of negligence than that alleged in the citation. We 

instruct the Judge on remand to provide an adequate explanation for any penalty reassessed. 

E. Citation No. 7496266: Inoperative backup alarm

At the refuse site, trucks dumped a wet mixture of rock and mud. Tr. 307. Sequoia’s 

mechanic, Willie Fee, testified that when a refuse truck dumped its load, it sometimes backed 

into previously dumped material, and mud pushed into the backup alarm, muting its sound. Tr. 

36 FMSHRC Page 839
317-18, 321; 32 FMSHRC at 1372. Fee stated, “the situation we had up on the refuse was very 

messy and muddy. And every time you’d back in, it just kept – it was a continuous problem with 

mud pushing up into the backup horn.” Tr. 321. Although the cited inoperative backup alarm 

was noted for several months in the preshift checklist, Fee testified that he periodically washed 

the backup alarm but did not report that he had cleaned it. Tr. 308-10, 319-20. Fee agreed that 

the problem with mud packing into the alarm would continue to occur until the horn was moved, 

which it eventually was. Tr. 322-23. 

The Judge determined that the violation of section 77.410(c) resulted from the operator’s 

moderate, rather than high, negligence.11 32 FMSHRC at 1372. The Judge reasoned, “[t]he 

admitted muddy conditions are a mitigating factor, however Sequoia is responsible for 

maintaining the alarm in functioning condition.” Id.

We conclude that the Judge erred in finding that the muddy conditions were a mitigating 

factor. As the record indicates, the muddy conditions were a recurring condition, and the effect 

on the alarm of backing into mud was known to the operator. Tr. 317-23. We instruct the Judge 

on remand not to consider the muddy conditions as a mitigating factor in his penalty 

reassessment.12 

11 Although the Secretary has not challenged the Judge’s determination that the level of 

negligence was moderate (PDR at 20 n.15), the Secretary has challenged the Judge’s finding that 

the muddy conditions were a mitigating factor (id. at 17-18). 

12 Commissioner Cohen would find it appropriate for the Judge to take into consideration 

Sequoia’s efforts, albeit ineffectual, to keep the backup alarm clean. 

36 FMSHRC Page 840
III.

Conclusion

For the reasons set forth above, we vacate the penalties assessed by the Judge with 

respect to Citation Nos. 7496260, 7496262, 7496263 and 7496266, and remand for the 

reassessment of appropriate civil penalties. On remand, the Judge shall reassess the penalties in 

recognition that the proposed penalties were impacted by the amendments to Part 100 and 

reconcile seemingly unsupported or inconsistent findings as discussed in this decision. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

36 FMSHRC Page 841
Commissioners Young and Althen, concurring: 

We concur with the decision to remand this case, but disagree with the majority’s 

reasoning. The majority finds the Judge abused his discretion asserting that the Judge (1) “failed 

to recognize in his decision that the four proposed penalties were significantly impacted” by the 

Secretary of Labor’s 2007 revised penalty regulations, slip op. at 5, and (2) improperly relied 

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

Assessed Violation History Report. Slip op. at 6. 

By remanding on these grounds, the majority avoids a principal argument advanced by 

the Secretary – that the Judge “abused his discretion by considering a factor outside those listed 

in Section 110(i), [30 U.S.C. § 820(i),] i.e., the amounts of previous penalties.” PDR at 11. 

This important question deserves resolution. However, ruling upon that issue requires us 

to consider in context the use the Judge made of the prior penalties and the Secretary’s objections 

to that specific usage. Consequently, we would remand the case for a more specific explanation 

by the Judge of the use he made of prior penalty amounts in imposing penalties in this case. 

A. The Majority’s Reasoning Fails to Reach the Real Issue in Dispute

1. The Judge’s failure to expressly mention the changes in the penalty

regulation made nearly a year before the violation and three years

before his decision does not invalidate his decision.

The majority says the Judge “failed to recognize” the increase in the amounts of 

penalties. This is a mere assumption, arising from the fact that the Judge did not explicitly 

mention the increase in his opinion.1 The failure of the Judge to state explicitly that penalty 

regulations were amended nearly a year before the violations cited in February 2008 and more 

than 3 years before the September 21, 2010 decision is hardly remarkable. Indeed, it would be 

more surprising for an ALJ to mention a revision to the regulations that had occurred three years 

previously, when this Judge has considered penalties in dozens of cases since the revision. 

Just as the failure to cite specific evidence does not mean that it was not considered 

(Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)), the failure to discuss explicitly a three-year1

 In the same sense, the Secretary also “failed to recognize” the increase in penalties 

under the revised regulation. The Secretary’s counsel did not note the changed penalty 

regulations on Government Exhibit 12. Nor did we see any place in the transcript where counsel 

informed or reminded the Judge of any change. Indeed, in demanding that the Judge not refer to 

prior penalties, the Secretary demands that the Judge ignore evidence the Secretary placed into 

the record. 

36 FMSHRC Page 842
old change in the penalty regulations does not mean the Judge was not aware of such changes, 

did not recognize that the changes had been made, or did not take those changes into account.2

2. Use of the Assessed Violation History is part of, rather than an abuse

of, the penalty process.

The majority also apparently finds fault in the Judge’s reference to MSHA’s Assessed 

Violation History Report in his assessment of penalties. Whether or not the majority actually 

intends to impeach the usefulness of the Assessed Violation History, characterizing it as a mere 

“overview” misapprehends and understates the value of the information contained in the report, 

including information regarding prior penalties. Further, it avoids altogether any discussion of 

the Commission’s decision in Black Beauty Coal Company, 34 FMSHRC 1856 (Aug. 2012) 

overruling Ambrosia Coal & Constr. Co., 18 FMSHRC 1552 (Sept. 1996).3

An operator’s history of previous violations is a statutory criterion, and MSHA’s 

Assessed Violation History Report was the only evidence introduced at the hearing on this 

criterion.4

 To refute the suggestion that the Assessed Violation History Report is of marginal 

concern, one need only note that the Commission has vacated assessments where the Judge did 

2

 To illustrate its position, the majority states that for one of the penalties the prior 

penalty scheme would have yielded a penalty of $629 rather than the Secretary’s assessment of 

$5,503. A problem with the illustration is that it fails to mention that the Judge’s assessment of 

$3,500 was five and a half time greater than $629. Similarly, the Secretary did not appeal the 

Judge’s reduction in the negligence finding for Citation No. 7496266 from high to moderate. 

That reduction would have reduced the operator’s point total by 15 points from 106 to 91 under 

the current penalty regulations, and the assessed penalty from $3,996 to $1,200. However, the 

Judge assessed a penalty of $2,200 that was nearly twice the amount under the revised, 

“enhanced” penalty regulations. 

3

 The majority’s finding that the Assessed Violation History Report does not provide 

sufficient information to allow a meaningful comparison with the charged violations repeats a 

criticism by commenters on the history of repeat violations element in the enhanced penalty 

regulation rulemaking. Those comments were rejected by the Secretary in adopting the 

regulations. 72 Fed. Reg. 13592, 13608-09 (Mar. 22, 2007). Indeed, the revised regulations 

aggregated significant and substantial (“S&S”) and non-S&S violations for purpose of the 

history of repeat violations despite arguments that such aggregation ignores an important factual 

distinction between violations. Id.

4

 The majority does not distinguish between the Assessed Violation History introduced 

by the Secretary in this case, which contained history from before and after implementation of 

the revised penalty regulations in April 2007 and the current format for the Assessed Violation 

History exhibit format. Instead, the majority appears to be commenting upon Assessed History 

Violation Reports generally. 

36 FMSHRC Page 843
not give it sufficient consideration. Sec’y of Labor on behalf of Johnson v. Jim Walter Res., Inc., 

18 FMSHRC 552, 556-57 (Apr. 1996) (“The judge failed to consider the operator’s general 

history of previous violations submitted into evidence by the Secretary as the Assessed Violation 

History Report. . . . [W]e conclude that the judge erroneously limited the scope of the history 

criterion. We therefore remand the matter to the judge to evaluate the operator’s history of 

violations.”). 

 Although the Assessed Violation History report does not contain information on the facts 

underlying prior violations or precise negligence or gravity point information, it does help Judges 

understand and evaluate the prior performance of the operator. It specifies the date of each prior 

violation, the specific standard violated, type of action, whether the violation was found to be 

significant and substantial, and the amount of the penalty. 

 This information, standing alone, is useful for reviewing the operator’s history of prior 

violations, but a more refined perspective can easily be gleaned from the data. It is unlikely that 

the appropriateness to an operator’s size or the effect of a penalty on an operator’s ability to 

continue in business will have changed significantly, and the history of prior violations is a 

rolling consideration.5

 Therefore, although the information regarding negligence and gravity 

will not be “precise,” a Judge may conclude with a reasonable degree of accuracy the total 

penalty points assigned for negligence and gravity for prior violations. Such information is not 

merely credible, quality data – it is often the only available evidence of prior history.

B. The Majority Declines to Address Whether an Administrative Law Judge May Use 

Prior Penalty Assessments in Imposing a Final Penalty Amount.

 There is an important unanswered question at the center of this case – whether 

Administrative Law Judges may use prior penalty amounts in assessing penalties. Citing Jim 

Walter Resources, Inc., 28 FMSHRC 579 (Aug. 2006), the Secretary asserts that “an ALJ may 

not rely on such amounts [past penalties] to arrive at penalties for new violations.” PDR at 11. 

In Jim Walter, we held that a judge could properly “note” the equivalency between penalties 

assessed and past penalties, but could not use past penalties to calculate an assessment simply 

because prior assessments were not a relevant factor under section 110(i) of the Mine Act. 28 

FMSHRC at 608. The Commission has consistently ruled that, in assessing penalties, a Judge 

may take into account only the six criteria listed in section 110(i). See RAG Cumberland Res., 

LP, 26 FMSHRC 639, 658 (Aug. 2004) (citing cases), aff’d sub nom. Cumberland Coal Res., LP 

v. FMSHRC, No. 041427, 2005 WL 3804997 (D.C. Cir. Nov. 10, 2005) (unpublished). 

Thus, the Secretary asserts a specific limitation upon the Judge’s considerations in setting 

a final penalty amount. The Secretary contends that “[t]he ALJ . . . abused his discretion by 

considering a factor outside those listed in Section 110(i), i.e., the amounts of previous 

penalties.” PDR at 11. 

 5

 Good faith may not be assumed. However, based upon the penalty assessment before 

the Judge, the Judge may be able to make reasonable inference regarding good faith. 

36 FMSHRC Page 844
We would hold that this issue is not ripe for consideration because the Judge did not 

identify the reason for his mention of prior penalties, but it is the heart of the Secretary’s 

argument. Armed, following remand, with an understanding of the reason the Judge cited the 

prior penalties, we may fully evaluate the basis for the Judge’s reference to prior penalties. 

 The Secretary’s reliance upon Jim Walters may seem doomed by the Commission’s 

decision in Black Beauty Coal Company, 34 FMSHRC 1856 (Aug. 2012). In that case, as here, 

the Secretary contended “that the Judge erred in considering deterrence as a separate component 

in the Judge’s consideration of the appropriateness of the penalties.” Id. at 1857. The 

Commission disagreed and found that a Judge may consider the deterrent effect of a penalty as a 

consideration separate and apart from the six statutory criteria. Id. at 1868-69. 

 However, Black Beauty was decided in the context of a settlement, where a hearing 

record had not been fully developed. Furthermore, the Commission decision was issued without 

the benefit of a full briefing on the issues or oral argument. The Secretary continues to maintain 

before us, in this case, that Commission Judges may not base penalties on factors outside the six 

statutory criteria in section 110(i). 

 Finally, in Black Beauty, the Commission held that “the Judge did not abuse her 

discretion by considering the deterrent effects of the penalty amounts . . . .” Id. at 1869. 

However, the Commission provided no guidance or standards against which this newfound 

authority might be evaluated. It is thus possible that the decision in Black Beauty might be 

limited to the facts of that case, which overruled our decision in Ambrosia Coal and 

Construction Company.6 only “[t]o the extent that the case suggests that a Judge may not 

explicitly consider deterrence in the analysis of the six statutory factors and the overall penalty.” 

Id. at 1868 (emphasis added). 

It is unclear how Black Beauty would affect the Judge’s consideration of the penalty, and 

how the Secretary might respond to its express application in this case. Thus, on remand we 

would require the Judge to state whether and how Black Beauty applies to control or influence 

his decision on an appropriate penalty. 

We note that Black Beauty, supra, did not consider prior penalty amounts as a subcriterion of the statutory element of history of previous violations. However, penalty amounts 

6

 In Ambrosia, a unanimous Commission panel including Chairman Jordan held: 

[A]lthough deterring future violations is an important purpose of civil penalties, 

deterrence is achieved through the assessment of a penalty based on the six statutory penalty 

criteria. See Dolese Bros. Co., 16 FMSHRC 689, 695 (April 1994) (a judge’s consideration is 

limited to the statutory penalty criteria). Deterrence is not a separate component used to adjust a 

penalty amount after the statutory criteria have been considered. 

18 FMSHRC at 1565 (footnote omitted). 

36 FMSHRC Page 845
are included on the Assessed Violation History Report and, therefore, are placed in evidence in 

virtually every penalty proceeding. As the majority in Black Beauty noted, the legislative history 

of the Mine Act shows that the history of penalty amounts was an important concern of 

Congress. 34 FMSHRC at 1865-66. Indeed, in addition to the references cited by the majority 

in Black Beauty, the Senate Report contained charts comparing assessed and collected penalties 

at the Scotia mine, the average penalty assessment per violation, and refers once to the amount of 

penalties in the context of the penalty criteria being included in the Mine Act. S. Rep. No. 95-

181, at 41-45 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 629-33 (1978) 

(hereinafter “Legis. Hist.”). The Senate Report further emphasizes the Commission’s role in 

preventing the unwarranted lowering of penalties.7

 Legis. Hist. at 44-45. 

This discussion in the Mine Act’s legislative history occurs in conjunction with the 

specific penalty criteria being written into the Mine Act. Further, prior penalty amounts may be 

seen as relating uniquely to the history of previous violations.8 Use of prior penalties as part of 

consideration of previous violations would thus necessarily be integrated into that one of the six 

statutory factors and probably would not be given the weight accorded such penalties in a 

separate, free-standing deterrence consideration. It is therefore crucial that the Judge specify 

how the prior penalty amounts were used, either as part of his conclusion of the operator’s 

history of violations or as a basis for determining the amount needed to achieve deterrence. 

While the Judge may have taken the prior penalties into account as part of a consideration 

of history of prior violations, his assessment of specific penalties in earlier, discrete sections of 

his opinion cited mitigating factors other than previous violation history. It therefore seems 

more likely that the Judge may have used the penalties in considering a deterrence argument by 

the Secretary or simply as a separate deterrence evaluation. 

The Judge’s reference to a Secretarial argument of a need for the operator “to display 

greater efforts” (32 FMSHRC at 1372) is textbook “deterrence” language. Therefore, he may 

have found it appropriate to accomplish the general purpose of deterrence without imposing an 

7

 The Conference Report states that the Congress acceded to the Senate Report on 

penalties thereby perhaps confirming that penalty amounts are part of the history of previous 

violations criterion for assessment of penalties. S. Conf. Rep. No. 95-461, at 58 (1977), 

reprinted in Legis. Hist. at 1279, 1336. Support for this view is found in the Senate Report 

stating, “That the amount assessed and collected for such violations actually decreased rather 

than increased raises serious questions in the Committee's mind as to whether MESA was 

properly following the statutory criteria for the assessment of penalties.” Legis. Hist. at 630. 

8

 The use of prior penalties is not part of, and would not easily fit within, the Secretary 

point system for assessment of penalties. However, given that Congress has entrusted the 

Commission with discretionary authority to set final penalties, it does not seem untoward for the 

Commission to consider permitting its Judges to take into account a sub-criterion of a statutory 

penalty criterion that is part of violation history but not amenable to regulatory scoring. 

36 FMSHRC Page 846
excessive burden upon the operator.9

 This thesis is consistent with the Judge’s announcement of 

his preliminary decision at the close of the hearing; wherein he noted that the penalties assessed 

were “relatively high given the history of violations,” and the previous proposed penalties in the 

Assessed Violation History Report. Tr. 357. Here, the Judge references both the history of prior 

violations and, in the same breath characterized the penalties imposed as “really significantly 

higher than in the past,” which would, indeed, be consistent with the progressive enforcement 

scheme and deterrent purpose of the Act. Tr. 358. 

C. Conclusion

Rather than avoiding the central and important issue raised by the Secretary through a 

finding of abuse of discretion, we would remand the case for an explanation by the Judge of the 

reason he cited prior penalties amounts. Such an explanation would provide the Secretary an 

opportunity to consider his position with respect to those reasons. If the Secretary then 

continued to assert the Judge could not refer to prior penalties, the Commission could act on the 

basis of a completely briefed and argued record. For that reason, we would remand this case to 

the Administrative Law Judge for clarification of the reason he referred to prior violations and 

the use, if any, he made of them.10

/s/ Michael G. Young 

Michael G. Young, Commissioner 

William I. Althen 

William I. Althen, Commissioner 

9

 This is a subjective viewpoint invited by the result in Black Beauty and would not be 

any more susceptible to objective review than the result in that case. 

10 Given the majority’s (in our view unwarranted) skepticism, we would also require the 

Judge to explain whether he was aware of and/or took into account the change in penalty 

regulations in referring to the prior penalties. 

36 FMSHRC Page 847
Distribution

Jim F. Bowman 

P.O. Box 99 

Midway, WV 25878 

jimbowman61@hotmail.com

Edward Waldman, Esq. 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 1100 

Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Administrative Law Judge Jerold Feldman 

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges 

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

Washington, D.C. 20004 

36 FMSHRC Page 848
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

April 30, 2014 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

MANALAPAN MINING COMPANY, INC. 

: 

: 

: 

: 

: 

: 

: 

: 

: 

Docket No. KENT 2008-737 

A.C. No. 15-18267-144079 

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

DECISION

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

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

seq. (2012) (“Mine Act” or “Act”) is before the Commission a second time on appeal from the 

Judge’s decision on remand. 35 FMSHRC 1377 (May 2013) (ALJ) (ALJ Dec. II). The Judge’s 

initial decision, in relevant part, considered two section 104(d)1 orders issued by the U.S. 

Department of Labor’s Mine Safety and Health Administration (“MSHA”) to Manalapan Mining 

1

 Section 104(d)(1) of the Mine Act provides in pertinent part: 

If, upon any inspection of a coal or other mine, an authorized 

representative of the Secretary finds that there has been a violation 

of any mandatory health or safety standard, and if he also finds that, 

while the conditions created by such violation do not cause 

imminent danger, such violation is of such nature as could 

significantly and substantially contribute to the cause and effect of a 

coal or other mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of such operator 

to comply with such mandatory health or safety standards, he shall 

include such finding in any citation given to the operator under this 

Act. 

30 U.S.C. § 814(d)(1). 

36 FMSHRC Page 849
Company, Inc. for combustible coal accumulations in violation of 30 C.F.R. § 75.400.2

 32 

FMSHRC 690, 701-03, 705 (June 2010) (ALJ) (ALJ Dec. I). The Judge affirmed the violations, 

but determined that they were not the result of the operator’s unwarrantable failure to comply with 

mandatory health or safety standards. Id. The Commission granted the Secretary of Labor’s 

petition for discretionary review challenging the Judge’s decision. In its initial decision, the 

Commission vacated the Judge’s unwarrantable failure determinations and remanded the matter to 

him to make findings on all the relevant unwarrantable failure factors and to apply the correct legal 

standard. 35 FMSHRC 289, 290, 297-98 (Feb. 2013) (Manalapan I).3 

 In his decision on remand, the Judge found that the first of the two violations, Order No. 

7511472, resulted from the operator’s unwarrantable failure to comply with the Secretary’s 

standard. ALJ Dec. II, 35 FMSHRC at 1380. However, he vacated the second violation, Order 

No. 7511478, concluding that the Secretary had failed to prove a violation, despite the fact that in 

his initial decision he had ruled that a violation had occurred. Id. at 1382-83. The Commission 

has again granted the Secretary’s petition for discretionary review challenging the Judge’s 

decision. 

For the reasons that follow, we conclude that by reversing his initial finding of a violation, 

the Judge violated the “law of the case” doctrine. We therefore reverse the Judge’s ruling on the 

fact of violation for Order No. 7511478, vacate his decision, and remand for further consideration 

of several factors relevant to the unwarrantable failure issue for that violation. 

I. 

Factual and Procedural Background

A thorough discussion of the background facts and the Judge’s initial decision is found in 

our Manalapan I decision. 35 FMSHRC at 290-293. To briefly summarize, at the time of the 

subject citation, Manalapan operated an underground coal mine in Pathfork, Kentucky. Coal was 

extracted from the working face by a continuous miner and transported out of the mine by a series 

of conveyor belts that were approximately 2,300 feet in total length. The extracted material was 

transferred in turn from the No. 4 belt at the face to the No. 3 and No. 2 belts and ultimately to the 

No. 1 belt nearest the surface. The conditions in the mine were constantly wet because of 

percolation of water through old works and the mine floor and ribs, and by the use of water for dust 

 2

 30 C.F.R. § 75.400 states that “Coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be 

permitted to accumulate in active workings, or on diesel-powered and electric equipment therein.” 

3

 In Manalapan I, Commissioner Young dissented in part from the majority opinion. He 

agreed that the Judge erred with regard to one violation (Order No. 7511472), but concluded that 

the Judge’s decision in the other violation (Order No. 7511478) was supported by substantial 

evidence and consistent with the law. Hence, he would have affirmed the Judge’s decision as to 

Order No. 7511478. 35 FMSHRC at 299-301. 

36 FMSHRC Page 850
control at the face. Despite the presence of water pumps, water was never completely removed, 

and the mine floor remained muddy at all times. 

On October 2, 2007, before conducting his inspection of the mine, MSHA Inspector Daniel 

Lewis reviewed the preshift and onshift examination books. He observed notations under the 

column entitled “Hazardous,” entered from August 30 through October 2, 2007, noting generally 

wet and muddy conditions on a daily basis along the four belts. The books noted “working on” 

and “shoveling” as actions taken to correct the conditions. At the time of the inspection, four men 

were assigned to work on the beltline. 

The issues on appeal in Manalapan I involved Belt Nos. 3 and 2, but this appeal concerns 

only Belt No. 2. Belt No. 2 was 500 feet long. In the order, Lewis noted that the accumulations 

along Belt No. 2 were one to 12 inches deep and that ten bottom rollers were rubbing on the 

accumulations. Inspector Lewis testified that the conditions along Belt No. 2 were so wet and 

muddy that they constituted a “borderline situation” in terms of establishing a violation. Tr. 

150-52. Superintendent Miniard testified that there was no coal spillage along the belt. Tr. 337. 

Photos of the area depicted a “wet, soupy mixture of mud and water.” ALJ Dec. I, 32 FMSHRC at 

703; R. Ex. 9. 

Lewis issued Order Nos. 7511472 (Belt No. 3) and 7511478 (Belt No. 2) for violations of 

the mandatory safety standard in section 75.400 and designated the cited violations as “significant 

and substantial”4

 and attributable to Manalapan’s unwarrantable failure to comply.5 The 

Secretary proposed a $60,000 penalty for each violation. Upon the issuance of the citation and 

orders, the belts were shut down, and abatement took 18 employees seven to eight hours. 

In his initial decision, the Judge determined that the accumulations along Belt No. 3 were 

an S&S violation, but declined to find that the violation resulted from an unwarrantable failure. 

32 FMSHRC at 700-01. The Judge upheld Order No. 7511478, finding that there was an 

adequate basis to constitute an accumulations violation. He determined that the violation along 

Belt No. 2 was not S&S because the testimony indicated that the accumulation was soupy and 

more liquid than muddy, and thus the hazard posed by the condition was unlikely to cause serious 

injury. Id. at 702-03. The Judge also declined to find that the violation was an unwarrantable 

failure, relying on the inspector’s testimony that the violation was “borderline,” that it was 

unlikely to cause a fire, and that the evidence reflected no more than a moderate degree of 

negligence. Id. at 703. Consequently, the Judge modified both orders and assessed penalties of 

4

 The “significant and substantial” (“S&S”) terminology is taken from section 104(d)(1) 

of the Act, 30 U.S.C. § 814(d)(1), which distinguishes as more serious any violation that “could 

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

hazard.” 

5

 The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 

U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a violation. 

36 FMSHRC Page 851
$12,000 for Order No. 7511472 (Belt No. 3), and $4,000 for Order No. 7511478 (Belt No. 2). Id. 

at 702, 704. 

In Manalapan I, the Secretary appealed only the finding that the two orders were not the 

result of unwarrantable failures. 35 FMSHRC at 293.6

 The Commission vacated the Judge’s 

unwarrantable failure determinations and remanded the case to him to “explicitly consider and 

weigh all the relevant factors as to whether Manalapan’s conduct constituted unwarrantable 

failures.” Id. at 297-98. The Commission decision expressly set forth the unwarrantable failure 

factors the Judge should have considered and the relevant evidence related to each factor, as well 

as the necessary findings the Judge would need to make on remand. Id. at 294-97. 

On remand, with regard to Order No. 7511472 (Belt No. 3), the Judge held that high 

negligence supported a finding of an unwarrantable failure and increased the penalty from $12,000 

to $16,000. ALJ Dec. II, 35 FMSHRC at 1380-81. As to Order No. 7511478 (Belt No. 2), the 

Judge stated that reconsidering unwarrantable failure caused him “to revisit the facts surrounding 

the cited violation.” Id. at 1382. Believing that he “retained jurisdiction over all elements of 

Order No. 7511478 since no final decision had been rendered,” the Judge did not view “the 

Commission’s remand of the unwarrantable failure issue as a determination . . . concerning the fact 

of the violation.” Id. at 1382, n.3. The Judge proceeded to reevaluate the same evidence he had 

already considered in his first decision, including the inspector’s testimony that the conditions on 

Belt No. 2 were “borderline,” and concluded that the Secretary failed to meet his burden of proving 

the violation. Id. at 1382-83. Accordingly, the Judge vacated Order No. 7511478.

II. 

Disposition

The Secretary contends that the Judge erred by failing to follow the Commission’s remand 

instructions for Order No. 7511478. Instead of conducting a proper analysis of the unwarrantable 

failure factors, the Judge reconsidered and reversed his earlier finding that the cited conditions 

constituted a violation. The Secretary points out that this issue was not appealed by either party 

and was not addressed by the Commission or remanded to the Judge. As a result, the Secretary 

argues that the Judge’s initial, unappealed finding that the accumulations on Belt No. 2 constituted 

a violation of section 75.400 became the law of the case and could not be revisited by the Judge on 

remand. 

A. The “Law of the Case” Doctrine

We conclude that the Judge erred by revisiting his earlier finding of a violation of Order 

No. 7511478 and reversing that finding on remand. His initial ruling upholding the violation 

constituted the law of the case. That doctrine provides that when a decision is made at one stage 

of litigation and not challenged on appeal, it continues to govern. See Concrete Works of 

Colorado, Inc. v. City and Cnty. of Denver, 321 F.3d 950, 992-93 (10th Cir. 2003); United States v. 

 6

 The operator did not seek review of any part of the Judge’s decision. 

36 FMSHRC Page 852
Bell, 988 F.2d 247, 250 (1st Cir. 1993); see also Pepper v. United States, 131 S. Ct. 1229, 1250 

(2011) (stating that “when a court decides upon a rule of law, that decision should continue to 

govern the same issues in subsequent stages of the same case.”). It is clear that here the law of the 

case principles governed the question of whether the accumulations on Belt No. 2 constituted a 

violation of section 75.400. In his initial decision, the Judge concluded that the conditions on Belt 

No. 2 constituted a violation. 32 FMSHRC at 702-03. Neither party appealed this finding to the 

Commission after the Judge’s initial decision. Thus, this finding was not before the Commission 

in Manalapan I, and was not remanded to the Judge for reconsideration. It is the law of the case. 

See Douglas R. Rushford Trucking, 23 FMSHRC 790, 793 (Aug. 2001) (holding that judge’s 

original findings of gross negligence and unwarrantable failure were not appealed, were not 

subsequently remanded, and thus became the law of the case). 

The Commission has explained that “[l]aw of the case rules have developed to maintain 

consistency and avoid reconsideration of matters once decided during the course of a single 

continuing lawsuit.” E. Ridge Lime Co., 21 FMSHRC 416, 421 (Apr. 1999). The doctrine 

“operates to protect the settled expectations of the parties and promote orderly development of the 

case. . . . [and] ‘ensures judicial efficiency and prevents endless litigation.’” 18B Wright, Miller 

& Cooper, Federal Practice and Procedure § 4478, at 638 n.7 (2d ed. 2002) (citing Suel v. HHS, 

192 F.3d 981, 984-85 (Fed. Cir. 1999)). 

The doctrine of “law of the case” is not jurisdictional but rather a rule of policy and 

practice. It permits a “modicum of residual flexibility” in exceptional circumstances. United 

States v. Rivera-Martinez, 931 F.2d 148, 151 (1st Cir. 1991), cert. denied 502 U.S. 862 (1991); 

United States v. Bell, 988 F.2d at 251. However, exceptions to the rule are narrow, and are limited 

to circumstances such as presentation of substantially different evidence, a change in applicable 

precedent since the issuance of the Judge’s initial decision, or a showing that the prior decision 

was “clearly erroneous and would work a manifest injustice.” Rivera-Martinez, 931 F.2d at 151; 

Concrete Works of Colorado, 321 F.3d at 993. 

Neither the Judge nor Manalapan has cited any evidence of extraordinary circumstances 

warranting revisiting the issue. In fact, the Judge simply reconsidered evidence he had already 

considered in his first decision. In both decisions, the Judge noted – indeed, he rested his decision 

upon – the testimony by Inspector Lewis that the conditions along Belt No. 2 were a “borderline 

situation.” 32 FMSHRC at 702-03; 35 FMSHRC at 1381-83. In the first decision, the Judge 

found that this testimony “provide[d] an adequate basis for concluding there was [sic] sufficient 

combustible accumulations, although extremely wet, to constitute a violation of section 75.400.” 

32 FMSHRC at 703. In his second decision, the Judge found this same evidence to be 

“inconclusive,” and that the Secretary had failed to carry his burden of proof. 35 FMSHRC at 

1383. The fact that the same evidence might be susceptible to different interpretations does not 

render the first decision “clearly erroneous” so as to justify an exception to the law of the case 

doctrine. 

While Manalapan claims a manifest injustice in the imposition of a penalty where no 

violation exists, Manalapan never appealed this finding and thus cannot now claim that it is 

inherently unjust or plainly erroneous. Accordingly, we vacate the Judge’s decision as to the fact 

36 FMSHRC Page 853
of violation and reinstate his initial finding that the cited conditions on Belt No. 2 constituted a 

violation of section 75.400. 

B. Consideration of Unwarrantable Failure Factors on Remand

Having reinstated the violation for Belt No. 2, we must once again remand the case to the 

Judge to address whether the violation amounts to an unwarrantable failure of Manalapan to 

comply with section 75.400. The Judge has addressed several of the unwarrantable failure factors 

on remand with regard to the accumulations on Belt No. 3. While he failed to consider the 

evidence bearing upon those factors for the violation on Belt No. 2 since he vacated that order, his 

findings with regard to several of the unwarrantable failure factors are equally applicable to both 

violations and constitute conclusive findings for the Judge’s reconsideration of the issue on 

remand. 

Specifically, in his analysis of Belt No. 3, he stated that “the relevant criteria for an 

unwarrantable failure designation were, for the most part, present. The accumulations were 

obvious, of significant duration, and known to Manalapan, as evidenced by the pertinent notations 

in the examination book.” 35 FMSHRC at 1379. Hence, the Judge found these factors to be 

aggravating. Because the notations in the examination books applied to all the belts, the Judge’s 

findings that the obviousness, duration, and the operator’s knowledge of the Belt No. 3 violation 

are aggravating factors apply equally to the Belt No. 2 violation. 

Regarding whether the operator had notice that greater efforts of compliance were 

necessary, the Judge did not explicitly address this factor in reconsidering the unwarrantable 

failure issue of Belt No. 3 in his decision on remand. However, the record compels the conclusion 

that the operator was on notice and that this served as an aggravating factor. In Manalapan I, we 

concluded that the Judge had considered Manalapan’s history of past accumulations violations in 

an inconsistent manner. We further stated that, given the Judge’s findings in his analysis of Belt 

No. 4 regarding Manalapan’s past history of accumulations violations, the operator’s history 

should likewise be an aggravating factor as to Belt Nos. 3 and 2. 35 FMSHRC at 295-96. The 

Judge’s findings as to Belt No. 4 were unappealed and – like his findings that conditions at Belt 

No. 2 constituted a violation – are now law of the case. Thus, we conclude that the evidence 

compels only one conclusion – that the operator was on notice, and that this also is an aggravating 

factor in the Judge’s consideration of the unwarrantable failure designation of the Belt No. 2 

violation. See American Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (remand not 

necessary when record supports no other conclusion). 

On remand, the Judge need therefore consider only the evidence related to the factors of the 

degree of danger, the extent of the violation, and the operator’s efforts to abate the violation 

specifically as to Belt No. 2, as we had explicitly instructed in Manalapan I. 35 FMSHRC at 

294-97. The Judge should make the requisite findings and determine whether these factors are 

aggravating or mitigating and then determine whether Manalapan’s conduct amounted to an 

unwarrantable failure to comply with the standard. 

36 FMSHRC Page 854
III.

Conclusion

For the foregoing reasons, we vacate and reverse the Judge’s finding that Order No. 

7511478 did not constitute a violation of section 75.400, and reinstate his initial finding of a 

violation. We remand for reconsideration of the evidence related to the factors of the degree of 

danger, the extent of the violation, and the operator’s efforts to abate the violation related to the 

unwarrantable failure designation of Order No. 7511478 under the correct legal standard, and for 

assessment of a penalty as appropriate. 

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman 

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen

William I. Althen, Commissioner 

36 FMSHRC Page 855
Commissioner Young, concurring in part, dissenting in part: 

I agree with the majority’s analysis of the law of the case doctrine, but I would not have 

remanded the case in the first instance. Because I believe the issue was addressed properly in the 

Judge’s original decision, I would vacate his holding of no violation on remand and reinstate his 

original finding that the violation did not result from the operator’s unwarrantable failure and 

would reinstate the penalty he originally imposed for the violation. 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

Distribution: 

John M. Williams, Esq., 

Rajkovich Williams Kilpatrick & True PLLC 

3151 Beaumont Center Circle, Suite 375 

Lexington, KY 40513 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Dept. of Labor 

1100 Wilson Blvd., Rm. 2220 

Arlington, VA 22209-2296 

Melanie Garris, 

Office of Civil Penalty Compliance 

MSHA 

U. S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-2296 

Administrative Law Judge Jerold Feldman 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20004-1710 

36 FMSHRC Page 856
COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 08, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. CENT 2013-605-M

v. : A.C. No. 23-00457-325635-01

:

THE DOE RUN COMPANY :

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, 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 December 4, 2013, The Doe Run Company (“Doe Run”)

filed a motion seeking to reopen a penalty assessment proceeding and relieve it from the default

order entered against it. 

On September 5, 2013, the Chief Administrative Law Judge issued an Order to Show

Cause which by its terms became a Default Order if the operator did not file an answer within 30

days. This Order to Show Cause was issued in response to Doe Run’s failure to answer the

Secretary’s July 26, 2013 Petition for Assessment of Civil Penalty. The Commission did not

receive Doe Run’s answer within 30 days, so the default order became effective on October 7,

2013. 

Doe Run asserts that its safety director resigned on October 4, 2013, and its new safety

director discovered the delinquency after receiving the Secretary’s Substitution of Counsel

notice, dated November 12, 2013. The Secretary does not oppose the request to reopen, and

urges the operator to take steps to ensure that future answers are timely filed. 

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.

36 FMSHRC Page 857
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 permitted. See

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

Having reviewed Doe Run’s request and the Secretary’s response, in the interest of

justice, we hereby reopen the proceeding and vacate the Default Order. Accordingly, because

this case was assigned to Administrative Law Judge Margaret Miller, we are remanding it to her

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

C.F.R. Part 2700. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 858
Distribution:

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1500

401 Liberty Avenue

Pittsburgh, PA 15222

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge Margaret A. Miller

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

721 19th Street, Suite 443

Denver, CO 80202-5268

36 FMSHRC Page 859
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 08, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. VA 2013-350

v. : A.C. No. 44-06685-299480

:

BANNER BLUE COAL COMPANY :

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, 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 May 14, 2013, the Commission received from Banner

Blue Coal Company (“Banner Blue”) 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).

36 FMSHRC Page 860
Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment was delivered on September 6, 2012, and

became a final order of the Commission on October 8, 2012. Banner Blue asserts that its safety

director instructed its administrative assistant to file the contest form, but the assistant

mistakenly failed to file it timely. Banner Blue states that it discovered the delinquency on

MSHA’s data retrieval system on May 8, 2013. The Secretary does not oppose the request to

reopen based solely on the fact that MSHA received a late contest and a payment for the

uncontested penalties dated October 12, 2012. However, the Secretary notes that MSHA mailed

a late notice on November 1, 2012, and a delinquency notice on November 21, 2012, but the

operator did not file this motion until May 2013. 

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. 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 this case, we conclude

that sufficient evidence has been presented to suggest that the lack of any procedure to confirm

that the required paperwork was timely filed represents an inadequate or unreliable internal

processing system. 

Banner Blue has not replied to the Secretary’s response to its motion. In particular, the

operator failed to explain why it took six months after receiving the late and delinquency notices

to request reopening. We encourage parties seeking reopening to provide further information in

response to pertinent questions raised in the Secretary’s response. See, e.g., Climax Molybdenum

Co., 30 FMSHRC 439, 440 n.1 (June 2008); Highland Mining Co., 31 FMSHRC at 1316 n.3.

In considering whether an operator has unreasonably delayed in filing a motion to

reopen, we find relevant the amount of time that has passed between an operator’s receipt of a

delinquency notice and the operator’s filing of its motion to reopen. See, e.g., Left Fork Mining

Co., 31 FMSHRC 8, 11 (Jan. 2009); Highland Mining Co., 31 FMSHRC at 1316-17 (holding

that motions to reopen filed more than 30 days after receipt of notice of delinquency must

explain the reasons why the operator waited to file a reopening request, and lack of explanation

is grounds for the Commission to deny the motion). Here, the unexplained delay in responding

to MSHA’s delinquency notice amounted to six months. Banner Blue’s statement that it

discovered the delinquency on MSHA’s data retrieval system on May 8, 2013, does not explain

how and why it ignored MSHA’s late and delinquency notices in November 2012. Banner Blue

has not provided an explanation for filing its motion to reopen more than 30 days after receiving

the delinquency notice. 

36 FMSHRC Page 861
Having reviewed Banner Blue’s request and the Secretary’s response, we conclude that

Banner Blue has failed to establish good cause for reopening the proposed penalty assessment. 

Accordingly, we hereby deny without prejudice Banner Blue’s request to reopen. Eastern Assoc.

Coal, LLC, 30 FMSHRC 392, 394 (May 2008); FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr.

2007); Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). Should Banner Blue choose to renew

its motion, it should provide an explanation for filing its motion to reopen more than 30 days

after receiving the delinquency notice. Any renewed request by the operator to reopen this

assessment must be filed within 20 days of this order. Any such request filed after that time will

be denied with prejudice.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 862
Distribution:

Carol Ann Marunich, Esq.

Dinsmore & Shohl, LLP

215 Don Knotts Blvd., Suite 310

Morgantown, WV 26501

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 863
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 11, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. KENT 2013-739

v. : A.C. No. 15-19552-311756

:

MOUNTAINSIDE COAL COMPANY :

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, 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 May 8, 2013, the Commission received from

Mountainside Coal Company (“Mountainside”) 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).

36 FMSHRC Page 864
Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment became a final order of the Commission on

February 22, 2013. MSHA mailed a delinquency notice on April 9, 2013. Mountainside asserts

that it mailed a timely contest on February 1, 2013, and provided documentation of the mailing

of the contest. The Secretary does not oppose the request to reopen, but states that MSHA has

no record of receiving the penalty contest. 

Having reviewed Mountainside’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/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 865
Distribution:

Steven Chambers

Hlth. & Safty Dir.

Mountainside Coal Co.

7692 S. Hwy., 25W.

Williamsburg, KY 40769

scmscoal@live.com

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 866
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 11, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. WEST 2013-973-M

v. : A.C. No. 26-00668-320689

:

ART WILSON COMPANY :

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, 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 16, 2013, the Commission received from Art Wilson

Company (“AWCO”) 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).

36 FMSHRC Page 867
Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment was delivered on May 8, 2013, and became a

final order of the Commission on June 7, 2013. AWCO’s representative asserts that he placed

the contest in the outgoing mail on June 7. The Secretary does not oppose the request to reopen,

but notes that the contest form was postmarked June 11, and urges the operator to adopt

procedures to ensure that future penalty contests are timely filed. 

We note that an Order to Submit Information was issued in error on July 19, 2013. 

Contest proceedings Docket Nos. WEST 2013-679-RM through WEST 2013-690-RM are

incorporated in this matter.

Having reviewed AWCO’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/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 868
Distribution:

Mark C. Rainey

Repreesentative

Art Wilson Company

P. O. Box 20160

Carson City, Nevada 89721-0160

awcolegal@gmail.com

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 869
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 11, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. KENT 2013-703

v. : A.C. No. 15-17216-313707

:

WARRIOR COAL, LLC :

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, 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 26, 2013, the Commission received from Warrior

Coal, LLC (“Warrior”) 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).

36 FMSHRC Page 870
Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment was delivered on February 13, 2013, and

became a final order of the Commission on March 15, 2013. Warrior asserts that due to an

unknown error in its internal mail delivery, the assessment was not transferred to its safety

department. Warrior was notified of the delinquency by its accounting department. Warrior

states that it has taken steps to ensure that the transfer of mail between facilities will not affect

future timely filing of penalty contests. The Secretary does not oppose the request to reopen and

notes that Warrior filed this motion to reopen before MSHA mailed a delinquency notice on

April 30, 2013. 

Having reviewed Warrior’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/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 871
Distribution:

Gary D. McCollum, Esq.

Tyler H. Fields Esq.

Warrior Coal, LLC

771 Corporate Drive, Suite 500

Lexington, KY 40503

tyler.fields@arlp.com

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 872
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 11, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. SE 2013-331-M

v. : A.C. No. 01-00629-313889 ACR

:

G & R MINERAL SERVICES, INC. :

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, 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 11, 2013, the Commission received from G & R

Mineral Services, Inc. (“G&R”) 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).

36 FMSHRC Page 873
1

 We note that this is the second time within the last three years that G&R has requested

reopening of a penalty assessment because of its untimely filing of a notice of contest. See G&R

Mineral Servs., Inc., 33 FMSHRC 2070 (Sept. 2011).

Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment was delivered on February 19, 2013, and

became a final order of the Commission on March 21, 2013. G&R also received a second

proposed assessment, which it contested on March 27, 2013. G&R asserts that its safety director

mistakenly believed he was contesting both proposed assessments at once. G&R discovered its

mistake after conferring with counsel. G&R filed this motion to reopen after receiving MSHA’s

late notice on April 5, 2013. 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.1

Having reviewed G&R’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/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 874
Distribution:

Tamera K. Erskine, Esq.

Smith, Spires & Peddy, P.C.

2015 Second Ave., North, Suite 200

Birmingham, AL 35203

Tamera@ssp-law.com

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 875
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 11, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. WEVA 2013-761-M

v. : A.C. No. 46-04694-293123 7YE

:

BECKLEY DRILLING & BLASTING :

 SERVICES, INC. :

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, 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 11, 2013, the Commission received from Beckley

Drilling & Blasting Services, Inc. (“Beckley”) 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).

36 FMSHRC Page 876
This case involves Citation No. 8656936, which was included on Proposed Assessment

No. 293123 issued by MSHA on June 21, 2012. On June 25, 2012, Beckley’s President sent a

letter to MSHA contesting the proposed assessment associated with this citation, as well as two

other citations contained in a separate proposed assessment. According to MSHA records,

Beckley enclosed a contest form for the other proposed assessment but not for Proposed

Assessment No. 293123. MSHA’s Civil Penalty Compliance Office acknowledged receipt of

the contest of the two citations in the other proposed assessment, but not for the contest of the

proposed assessment in Citation No. 8656936. Thus, according to MSHA records, the penalty

for Citation No. 8656936 became a final order of the Commission on July 27, 2012. On July 30,

2012, Beckley sent a second letter to MSHA contesting the three citations and their associated

proposed assessments. Beckley asserts that upon investigating the status of Citation No.

8656936 in the MSHA Data Retrieval System on April 2, 2013, it discovered the alleged

delinquency.

The Secretary does not oppose the request to reopen, but notes that the operator never

submitted a contest form in this case. The Secretary urges the operator to include MSHA Form

1000-179 with all future contests, as instructed in the proposed assessment. 

Having reviewed Beckley’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/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 877
Distribution:

Melissa Robinson, Esq.

Jackson Kelly PLLC

1600 Laidley Tower

P.O. Box 553

Charleston, WV 25322

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 878
1

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

consolidate docket numbers WEVA 2013-1945 and WEVA 2013-1946, both captioned Meigs

Mine Service, LLC, and involving similar procedural issues. 29 C.F.R. § 2700.12. 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 11, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH : Docket No. WEVA 2013-1945

 ADMINISTRATION (MSHA) : A.C. No. 46-08864-316833 X626

:

v. : Docket No. WEVA 2013-1946

: A.C. No. 46-08864-319764 X626

MEIGS MINE SERVICE, LLC :

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

ORDER

BY THE COMMISSION: 

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2012) (“Mine Act”). On June 19, 2013, the Commission received from Meigs

Mine Service, LLC (“Meigs”) two motions seeking to reopen two penalty assessments that had

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

§ 815(a).1

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

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

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

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

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

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

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

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

36 FMSHRC Page 879
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 proposed assessment No. 000316833 was delivered on March 25, 2013,

and became a final order of the Commission on April 24, 2013. Proposed assessment No.

000319764 was delivered on April 30, 2013, and became a final order of the Commission on

May 30, 2013. Meigs asserts that three of its safety management personnel were experiencing

medical issues, causing the failure to timely contest the assessments. The Secretary does not

oppose the requests to reopen and urges the operator to adopt procedures to ensure that future

penalty contests are timely filed. 

Having reviewed Meigs’ requests and the Secretary’s response, in the interest of justice,

we hereby reopen these matters and remand them 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/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 880
Distribution:

Cecil Bringer

Meigs Mine Service, LLC

53640 Portland Rd.

Portland, OH 45770

tyebrinager@yahoo.com

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 881
1

 The Commission consolidated the captioned cases pursuant to Commission Procedural

Rule 12, 29 C.F.R. § 2700.12, in the Direction for Review that was issued on April 4, 2014.

2

 Section 103(k) provides that “[i]n 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 . . . .” 30 U.S.C. §

813(k) (emphasis added). Section 3(k) of the Mine Act defines the word “accident” to “include[]

a mine explosion, mine ignition, mine fire . . . .” 30 U.S.C. § 802(k) (emphasis added).

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

 April 25, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH : Docket Nos. LAKE 2010-408-R 

 ADMINISTRATION (MSHA) : LAKE 2010-409-R

 : Docket No. LAKE 2010-759

v. : A.C. No. 11-02752-219590

 :

THE AMERICAN COAL COMPANY :

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

ORDER

BY THE COMMISSION:

These proceedings arise under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (2012) (“Mine Act”), and involve an order and citation that were issued 

to The American Coal Company by the U.S. Department of Labor’s Mine Safety and Health

Administration (MSHA) following an inspection of a coal stockpile at American’s mine.1

On January 19, 2010, MSHA inspectors issued Order No. 8418503 to American pursuant

to section 103(k) of the Mine Act after observing what they believed to be a “mine fire” on the

stockpile.2 The MSHA inspectors also issued Citation No. 8418504 for a failure to timely

contact MSHA after the operator knew or should have known that the incident occurred pursuant

to the requirements of 30 C.F.R. § 50.10.

Although American contested both the citation and the order, an Administrative Law

Judge held an expedited hearing exclusively on Order No. 8418503. On September 28, 2010, the

36 FMSHRC Page 882
3

 The Administrative Law Judge who issued the September 2010 decision retired while

the case was on review before the Commission.

Judge issued a decision vacating the order and concluding that because the inspectors did not

observe a flame on the stockpile, the Secretary failed to establish the occurrence of a “mine fire.” 

32 FMSHRC 1387, 1390-91 (Sept. 2010) (ALJ). The Secretary petitioned for review of the

Judge’s decision, which the Commission granted. 

On February 28, 2013, the Commission issued a decision concluding that a “mine fire”

does not require the presence of a flame. 35 FMSHRC 380, 387 (Feb. 2013). The Commission

stated that the Secretary reasonably interpreted the term “mine fire” in section 3(k) to include

“both events marked by flaming combustion and events marked by smoldering combustion that

reasonably has the potential to burst into flames.” Id. Accordingly, the Commission vacated the

Judge’s decision and remanded the matter for further proceedings. 

On remand, the matter was assigned to a second Administrative Law Judge.3

 On January

16, 2014, that Judge issued a decision that credited the testimony of the inspectors, found that a

“mine fire” had occurred on the stockpile, and affirmed the order. 36 FMSHRC 176, 179-80

(Jan. 2014) (ALJ).

On February 14, 2014, American filed a petition for discretionary review of the Judge’s

decision on remand, which the Commission granted. In its petition, American maintains, inter

alia, that the Judge “denied [its] request for additional briefing before rendering her Decision.”

PDR at 20.

On February 19, 2014, the parties filed a list of joint stipulations with the Judge so that

she could issue a decision on Citation No. 8418504, which had been issued for American’s

failure to timely notify MSHA regarding the mine fire. The parties agreed that their only dispute

with respect to the citation was whether a mine fire occurred on the stockpile. 36 FMSHRC __,

slip op. at 2 (Docket Nos. LAKE 2010-409-R and LAKE 2010-759) (Mar. 3, 2014) (ALJ). The

Judge relied on the parties’ stipulations as well as her January 16, 2014 decision in which she

concluded that a mine fire had occurred. Id. She concluded that American violated section

50.10 when it failed to immediately report the accident to MSHA, and therefore she affirmed

Citation No. 8418504. Id. at 3-4.

The issue of whether a mine fire occurred on the stockpile is common to the captioned

proceedings. We conclude that American’s petitions raise issues which should have been more

fully presented by the parties and considered by the Judge on remand. In particular, the issues

that were presented to the Judge were somewhat unusual because the Secretary had presented a

modified definition of the term “mine fire” to the Commission as compared to the definition that 

he proffered at the initial hearing. 35 FMSHRC at 384-85. We conclude that the Judge should

have provided the parties the opportunity to file briefs before issuing her January 2014 decision.

36 FMSHRC Page 883
Accordingly, the Judge’s January 2014 decision regarding Order No. 8418503 is vacated. 

Because the January 2014 decision formed the basis for the Judge’s March 2014 decision

regarding Citation No. 8418504, that decision is vacated as well. 

These consolidated cases are remanded to the Judge so that the parties may file briefs

fully addressing the issues. The Judge shall conduct further proceedings as necessary.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 884
Distribution:

Jason W. Hardin, Esq.

Fabian & Clendenin

215 South State Street, Suite 1200

Salt Lake City, UT 84111-2323

jhardin@fabianlaw.com

avamianakis@fabianlaw.com

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge Margaret A. Miller

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

721 19th Street, Suite 443

Denver, CO 80202-5268

36 FMSHRC Page 885
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

April 29, 2014

FRED ESTRADA :

:

v. : Docket No. CENT 2013-311-DM

: 

RUNYAN CONSTRUCTION, INC. : 

:

BEFORE: Jordan, Chairman; Young, Cohen, Nakamura, 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 April 18, 2014, Runyan Construction, Inc. (“Runyan”) filed with the

Commission a document entitled “Petition for Discretionary Review.” Runyan seeks review of a

Decision on Liability issued by an Administrative Law Judge on March 31, 2014, in which he

ruled that Runyan had discriminated against Fred Estrada in violation of section 105(c) of the

Mine Act, 30 U.S.C. § 815(c). 36 FMSHRC __, Docket No. 2013-311-DM, slip op. at 25-26

(Mar. 31, 2014) (ALJ).

In his decision, the Judge stated that he “retains jurisdiction in this matter until the

specific remedies to which Mr. Estrada is entitled are resolved and finalized. . . . Accordingly,

this decision will not become final, and therefore not appealable, until an order granting specific

relief and awarding monetary damages has been entered.” Id. at 26. Consequently, his decision

is interlocutory in nature. Section 113(d) of the Mine Act, 30 U.S.C. § 823(d), which governs

the filing of petitions for discretionary review, only allows for review of final decisions.

 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, only 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.

36 FMSHRC Page 886
1

 Even if Runyan had sought interlocutory review from the Judge and been denied, we

would conclude that the conditions set forth in Rule 76(a)(2) would not be met. Therefore, it

appears at this point that no purpose would be served by Runyan filing a motion for interlocutory

review with the Judge.

In this case Runyan failed to ask the Judge to certify his ruling for interlocutory review

and of course, the Judge has not denied any such request. Thus, Runyan has not followed the

necessary procedures to seek interlocutory review.1

For the reasons set forth above, the petition filed by Runyan is denied.

 /s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 887
Distribution

Jason M. Nutzman, Esq.

Dinsmore & Shohl, LLP

900 Lee Street, Suite 600

Charleston, WV 25301

Nathan Gonzales, Esq.

Gonzales Law

925 N. Hudson

Silver City, NM 88061

Ben Furth, Esq.

The Furth Law Firm, P.A.

The Furth Building

780 South Walnut, Suite 5

Las Cruces, NM 88001

Administrative Law Judge William B. Moran

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

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

Washington, D.C. 20004

36 FMSHRC Page 888
ADMINISTRATIVE LAW JUDGE DECISIONS

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 

April 3, 2014 

 

DECISION

Appearances: Jessica Allen, Esq., with Timothy J. Turner on brief, Office of the 

Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner; 

 R. Henry Moore, Jackson Kelly, PLLC, Pittsburgh, Pennsylvania, and 

Christopher G. Peterson, Esq., Jackson Kelly, PLLC, Denver, Colorado, 

for Respondent. 

Before: Judge Manning 

SIGNAL PEAK ENERGY, LLC, 

 Contestant 

 v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 

 v. 

SIGNAL PEAK ENERGY, LLC, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CONTEST PROCEEDING 

Docket No. WEST 2012-1063-R 

Order No. 8475786; 06/13/2012 

Bull Mountain Mine No. 1 

ID No. 24-01950 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2012-1325 

A.C. No. 24-01950-295463-01 

Docket No. WEST 2012-1326 

A.C. No. 24-01950-295463-02 

Docket No. WEST 2013-0034 

A.C. No. 24-01950-3000928-02 

Docket No. WEST 2013-0046 

A.C. No. 24-01950-301628-01 

Docket No. WEST 2013-0048 

A.C. No. 24-01950-301672 

Mine: Bull Mountains Mine No. 1 

36 FMSHRC Page 889
 These cases are before me upon a notice of contest and petitions for assessment of civil 

penalty filed by the Secretary of Labor, acting through the Mine Safety and Health 

Administration (“MSHA”), against Signal Peak Energy, LLC, 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 

Billings, Montana, and filed post-hearing briefs. 

 Signal Peak operates the Bull Mountains Mine No. 1 (the “Mine”) in Musselshell 

County, Montana. A total of four section 104(a) citations and one 104(d)(2) order in these 

dockets were adjudicated at the hearing.1 The parties settled 15 citations in these dockets. 

I. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

A. Order No. 8475786; WEST 2012-1325 and WEST 2012-1063-R 

On June 13, 2012, MSHA Inspector Scott A. Markve issued Order No. 8475786 under 

section 104(d)(2) of the Mine Act, alleging a violation of section 75.364(d) of the Secretary’s 

safety standards. (Ex. G-28). Order No. 8475786 documented three hazardous conditions that 

were not corrected immediately: (1) loose rib and roof material inby crosscut 76 covered 24 

inches of the walkway, narrowing it to 27 inches, the rib mesh was damaged for 10 feet, and 

danger tape marked the condition, (2) the second timber outby the seal at crosscut 76 laid on the 

ground, and (3) the timber that was 15 feet outby crosscut 76 contacted solid ground, but only 

touched loose roof material and was identified by red danger tape. Id. Inspector Markve 

determined that an injury was highly likely to occur and that such an injury could reasonably be 

expected to be fatal. Further, he determined that the violation was significant and substantial 

(“S&S”), resulted from the operator’s high negligence and unwarrantable failure, and that one 

person would be affected. Section 75.364(d) of the Secretary’s safety standards pertains to 

weekly examinations and requires in pertinent part that “[h]azardous conditions shall be 

corrected immediately.” 30 C.F.R. § 75.364(d). The Secretary proposed a penalty of $13,609.00 

for this citation. 

For the reasons set forth below, I modify Order No. 8475786. 

Discussion and Analysis

 I find that the conditions cited in Order No. 8475786 violated section 75.364(d) because 

Respondent failed to correct the cited hazards immediately. For the purposes of this case, the 

cited standard has two requirements: (1) at least one hazardous condition must exist and (2) the 

condition must be corrected immediately. 30 C.F.R. § 75.364(d). I credit Inspector Markve’s 

testimony, which is supported by his photographs, that the cited area presented a crushing hazard 

to miners due to roof falls. (Tr. 230-31; Ex. G-30 at 2). A timber lay upon the ground and 

 1

 At the hearing, the parties also presented evidence concerning two citations in Docket 

No. WEST 2012-410. (Tr. 6-214). After the hearing, the parties submitted a motion to approve 

settlement, which I approved by order dated August 28, 2013. 

36 FMSHRC Page 890
another timber did not touch solid roof. (Tr. 224-26). Mesh was cut open and had loose rock 

that appeared to be moving toward the open sections. (Tr. 234; Ex. G-30 at 2). Respondent 

argues that no roof fall hazard existed because the roof was supported with bolts and mesh, 

relying upon the testimony of Ray Jensen, Respondent’s general mine foreman. (Tr. 301-03). 

The inspector’s photos suggest that rock large enough to injure a miner was not supported and I 

credit the inspector’s testimony that roof falls in the cited area posed a hazard to miners. (Tr. 

230-32). It is worth noting that at least one timber that Respondent viewed as necessary to 

support the roof did not do so because it fell upon the ground. (Tr. 321). At least some of the 

conditions that contributed to roof fall hazard were not corrected immediately because they were 

noted in previous examinations weeks before the inspector issued the order. (Tr. 238). Jensen 

testified that the conditions would be addressed in a “somewhat timely manner,” which is not 

immediate. (Tr. 285-86). The roof conditions cited in Order No. 8475786 were not corrected 

immediately and created a crushing hazard, which violated section 75.364(d). 

 I find that Order No. 8475786 was S&S because the cited conditions were reasonably 

likely, but not highly likely, to contribute to a serious injury.2

 A roof fall could lead to crushing 

injuries. I credit the inspector’s testimony that a weekly examiner might not see that the timber 

was not in contact with the roof based upon the weekly examiner’s usual route, which made the 

roof fall hazard unlikely to be corrected and more likely to injure a miner. (Tr. 247). The 

combination of the tripping hazard and the roof fall hazard makes an injury more likely by 

slowing miner movement through the area and exposing miners to the roof fall hazard for a 

longer period of time. Most importantly, I find that the photographs taken by the inspector 

depict hazards that are reasonably likely to injure miners; rocks appear poised to fall onto the 

walkway where miners travel. (Ex. G-30 at 2). Respondent argues that the cited area was not a 

work area and was only traveled on a weekly basis; this argument combined with my evaluation 

of the inspector’s photos means that the cited conditions were not highly likely to lead to a 

serious injury. The conditions were, however, reasonably likely to lead to a crushing injury and 

Order No. 8475786 was therefore S&S. 

 

 2

 An S&S violation is a violation “of such nature as could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d) 

(2006). 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 

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 891
I find that the violation was the result of Signal Peak’s high negligence and its unwarrantable 

failure to comply with the safety standard.3

 An operator that holds a good faith, reasonable 

belief that a condition is not hazardous does not act with the required knowledge to commit an 

unwarrantable failure. IO Coal Co., 31 FMSHRC 1346, 1357-58 (Dec. 2009). I credit Jensen’s 

testimony that he did not believe that the conditions were hazardous. The inspector’s 

photographs and testimony, however, reveal a roof fall hazard that existed for weeks. I find that 

the evidence establishes that Jenson’s belief was not objectively reasonable under the 

circumstances. 

I credit the inspector’s testimony, as corroborated by his photographs, concerning his 

high negligence and unwarrantable failure determinations. The inspector testified that the 

conditions were extensive and obvious. (Tr. 247-49). “You couldn’t miss” the material in the 

walkway, the fallen timber, or the bagging roof mesh. Id. The evidence establishes that these 

hazardous conditions existed for a considerable length of time and that Signal Peak knew or 

should have known of the conditions through its examiners.4 Signal Peak’s efforts to abate the 

conditions did not come close to remediating the hazards. Inspector Markve testified that he 

previously discussed with management the importance of recording hazardous conditions during 

weekly examinations and taking steps to immediately correct the conditions. (Tr. 249-50). 

Although the cited area was not frequently traveled, the violation posed a high degree of danger 

to those who were in the area. I hold that Signal Peak exhibited high negligence and a serious 

lack of reasonable care in failing to immediately correct the cited conditions. 

Order No. 8475786 is hereby MODIFIED to be reasonably likely instead of highly likely 

to contribute to an injury. A penalty of $15,000.00 is appropriate for Order No. 8475786. 

 3

 Unwarrantable failure is defined by such conduct as “reckless disregard,” “intentional 

misconduct,” “indifference” or a “serious lack of reasonable care.” Emery Mining Corp., 9 

FMSHRC at 2003; see also Buck Creek Coal, Inc. v. FMSHRC, 52 F. 3d 133, 136 (7th Cir. 

1995). Whether conduct is “aggravated” in the context of an unwarrantable failure analysis is 

determined by looking at all the facts and circumstances of each case to see if any aggravating 

factors exist, such as the length of time that the violation has existed, the extent of the violative 

condition, whether the operator has been placed on notice that greater efforts are necessary for 

compliance, the operator’s efforts in abating the violative condition, whether the violation is 

obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the 

violation. See e.g. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). Repeated similar 

violations are relevant to an unwarrantable failure determination to the extent that they serve to 

put an operator on notice that greater efforts are necessary for compliance with a standard. 

Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992). 

4

 The Commission has recognized that the preshift examination requirement in section 

75.360 is “of fundamental importance in assuring a safe working environment underground.” 

Buck Creek Coal Co., 17 FMSHRC 8, 15 (Jan. 1995). Weekly examinations are likewise of 

fundamental importance especially in those areas of the mine that are not subject to preshift 

examinations. A mine operator must ensure that its examiners are trained to perform thorough 

examinations and that hazardous conditions are reported, recorded, and corrected. 

36 FMSHRC Page 892
B. Citation No. 8475790; WEST 2012-1326

On June 14, 2012, Inspector Markve issued Citation No. 8475790 under section 104(a) of 

the Mine Act, alleging a violation of section 75.384(a) of the Secretary’s safety standards. (Ex. 

G-21). Citation No. 8475790 states that gob piled to within 3 feet of the roof mesh as well as 

other refuse upon the ground created a stumbling, tripping, or falling hazard in the tailgate 

travelway for the 2 Right Longwall Section. Id. Inspector Markve determined that an injury was 

reasonably likely to occur and that such an injury could reasonably be expected to result in lost 

workdays or restricted duty. Further, he determined that the violation was S&S, the operator’s 

negligence was high, and that eight persons would be affected. Section 75.384(a) of the 

Secretary’s safety standards requires: 

If longwall or shortwall mining systems are used and the two designated 

escapeways required by §75.380 are located on the headgate side of the longwall 

or shortwall, a travelway shall be provided on the tailgate side of that longwall or 

shortwall. The travelway shall be located to follow the most direct and safe 

practical route to a designated escapeway. 

30 C.F.R. § 75.384(a). The Secretary proposed a penalty of $4,689.00 for this citation. 

For the reasons set forth below, I vacate Citation No. 8475790. 

Discussion and Analysis

 I find that the Secretary failed to fulfill his burden to show that Respondent violated 

Section 75.384(a) because he did not show that Entry 2, which Inspector Markve cited for the 

violation, was designated as the tailgate travelway. I credit the testimony of Jared Lester, Signal 

Peak’s longwall coordinator, that Entry 1 was the designated tailgate travelway due to his firsthand knowledge of the travelways at the mine. The Secretary argued that Entry 2 was 

designated as the tailgate travelway based upon Inspector Markve’s testimony that Entry 2 was a 

former escapeway, Respondent’s upper management informed him that Entry 2 was the tailgate 

travelway upon termination of another citation, and the presence of white reflective tape in Entry 

2. (Tr. 332-33. 336-37). Lester, however, testified that Entry 1 was the tailgate travelway; he 

was responsible for designating it as such. (Tr. 391). At the time the inspector issued Citation 

No. 8475790 the mine used green reflective tape to designate the tailgate travelway. (Tr. 379). 

Green tape hung in Entry 1 and miners were aware that Entry 1 was the tailgate travelway. (Tr. 

379). Lester was not aware of the inspector’s meeting with upper management (Tr. 381), but he 

testified that the previous citation incorrectly referenced Entry 2 as the trailhead travelway. (Tr. 

387). The conditions cited in the present citation do not constitute a violation of Section 

75.384(a) because that standard concerns tailgate travelways at longwall sections and Entry 2 

was not such a designated travelway. 

 The secretary also argued that Entry 1, if it were designated as the tailgate travelway, 

failed to provide “safe access for miners to escape the tailgate in the event of an emergency.” 

(Sec’y Br. at 20). This argument, however, fails because the inspector cited Entry 2, not Entry 1 

and the citation does not reference Entry 1. Lester also testified that he walked through Entry 1 

36 FMSHRC Page 893
and the conditions did not impede travel. (Tr. 376-77). The Secretary failed to fulfill his burden 

to show that Respondent violated section 75.384(a). I hereby VACATE Citation No. 8475790. 

C. Citation No. 8475639; WEST 2013-46

On March 26, 2012, Inspector Mark J. Albrecht issued Citation No. 8475639 under 

section 104(a) of the Mine Act, alleging a violation of section 103(a) of the Act. (Ex. G-40). 

Citation No. 8475639 states that Bud Viren “refused to provide the seal compaction tests” for 

failed seals during the inspector’s investigation of a hazard complaint. Id. Signal Peak “made no 

effort to contact the laboratory” responsible for performing the tests to obtain results. Id. The 

inspector requested the results on Friday, March 23, 2012 and issued the citation on Monday, 

March 26, 2012. Id. Inspector Albrecht determined that there was no likelihood that an injury 

would occur and an injury would not result in lost workdays. Further, he determined that the 

operator’s negligence was high. Section 103(a) of the Act charges the Secretary with entering 

mines “[f]or the purpose of making any inspection or investigation under this act,” and to gather 

information pertinent to the Act and mandatory health and safety standards. 30 U.S.C. § 813(a). 

The Secretary proposed a penalty of $3,000.00 for this citation. 

For the reasons set forth below, I vacate Citation No. 8475639. 

Discussion and Analysis

 I find that that Edward A. (Bud) Viren III, Signal Peak’s vice-president of engineering, 

did not refuse to provide seal compaction tests for failed seals and therefore did not impede 

Inspector Albrecht’s investigation in violation of Section 103(a) of the Act. I credit the 

testimony of both Viren and David John Brown, who was the longwall coordinator when 

Citation No. 8475639 was issued, that Respondent did not violate section 103(a) of the Act. 

Miners construct two metal stoppings that are 4 feet apart in each crosscut as the longwall 

retreats. The area between the stoppings in each crosscut is filled with a cement material. (Tr. 

443-44). This material must “cure” before it becomes sufficiently hard. Miners take two sets of 

nine samples as the area between the stoppings is filled with the material. After 28 days, Signal 

Peak sends one set to an independent laboratory for compression (compaction) testing. (Tr. 422, 

447-49). Under Signal Peak’s ventilation plan, if any of the initial set of samples sent to the 

laboratory fails the compression test, the lab asks the mine to send the second set of nine samples 

for additional testing. The specific test results from the initial set of samples are sent to the mine 

only if the samples pass the tests. If these samples do not meet the compression criteria, the lab 

only asks for the second set of samples without providing the specific test results. 

On Friday, March 23, 2012, Viren provided Inspector Albrecht with records concerning 

site inspections of the seals, calibration records, and the results of laboratory compression tests 

received from the laboratory. (Tr. 407). Late in the day, Inspector Albrecht asked Viren if he 

had any records for seals that failed the compression test. Id. Viren provided an email from the 

lab that showed that a seal failed the compression test; the email did not give specific results. 

Viren told the inspector that because it was late Friday afternoon and the lab was closed, he 

36 FMSHRC Page 894
would not be able to provide him with specific test results until sometime on Monday when he 

could contact lab personnel. (Tr. 408-09). 

Viren testified that he stayed at the Mine throughout the weekend for the purpose of 

aiding the inspector’s investigation of the available records and the inspector testified that Viren 

was helpful throughout the weekend. (Tr. 485-86, 436). Brown testified that he left voicemails 

on Friday, Saturday, Sunday, and Monday as well as emails on Monday for his contact at the lab. 

(Tr. 470. 458-60). He testified that Respondent “did everything in our power to get” the test 

results. (Tr. 462). 

Respondent provided the test results to the inspector on Monday, March 26, 2012, but 

only after Inspector Albrecht issued Citation No. 8475639. Viren testified that the inspector 

harassed and frustrated him throughout the weekend. (Tr. 484, 487). The inspector testified that 

Viren told him, using harsh language, “you need to talk to Dave Brown” and that helping him 

was not Viren’s job, which led to the issuance of Citation No. 8475639. (Tr. 413, 431). The 

inspector testified that Viren’s manner of speaking contributed to his decision to issue Citation 

No. 8475639 and when asked if he would have issued the citation if Viren had addressed him in 

a different way, the inspector replied, “[p]robably not, no.” (Tr. 437). 

I find that Respondent exerted its best efforts to obtain the test results that the inspector 

requested and provided those results as soon as possible. Although it is inadvisable for an 

operator’s agent to speak to an inspector in an unpleasant manner, it is not necessarily a violation 

of the Act to do so.5

 I find that Signal Peak did not impede MSHA’s investigation of the section 

103(g) complaint.6 I therefore VACATE Citation No. 8475639. 

D. Citation No. 8476307; WEST 2013-34

On July 23, 2012, Inspector Wayne Johnson issued Citation No. 8476307 under section 

104(a) of the Mine Act, alleging a violation of section 75.364(h) of the Secretary’s safety 

standards. (Ex. G-37). Citation No. 8476307 states that “[d]uring the weekly exam dated 

7/22/2012, the hazardous seals located in 2RT at cross cut 86 and cross cut 95 were not noted in 

the weekly examination book by the examiner. Failed seals with low oxygen behind them are 

hazardous to miners.” Id. Inspector Johnson determined that an injury was unlikely occur, but 

that any injury would be permanently disabling. Further, he determined that the operator’s 

negligence was high and that one person would be affected. Section 75.364(h) of the Secretary’s 

safety standards requires in pertinent part that “[a]t the completion of any shift during which a 

 5

 Viren denies that he swore at the inspector or told him that helping an inspector was not 

his job. 

6

 The Secretary argues that the inspector was entitled to immediate access to the 

information that he desired in accordance with 103(g) to investigate an anonymous complaint 

and Respondent purposely delayed his access. I reject this argument. The inspector’s testimony, 

as well as that of Brown and Viren, suggests that Respondent did its best to provide information 

to the inspector throughout the weekend. The test results were in an independent lab and 

delaying the inspector’s access to those test results served no purpose to Respondent since the 

passage of a few days would not change the results. 

36 FMSHRC Page 895
portion of a weekly examination is conducted, a record of the results of each weekly 

examination, including a record of hazardous conditions found during each examination and 

their locations” shall be recorded. 30 C.F.R. § 75.364(h). The Secretary proposed a penalty of 

$499.00 for this citation. 

For the reasons set forth below, I vacate Citation No. 8476307. 

Discussion and Analysis

I find that Respondent did not violate section 75.364(h) because the Secretary failed to 

fulfill his burden to show that Respondent did not record hazardous conditions in its weekly 

examination records. Section 75.364(h) generally requires that operators must make records 

documenting weekly examinations and specifically requires that hazards must be included in 

these records. 30 C.F.R. § 75.364(h). The Commission recently summarized section 75.364(h) 

as requiring that “hazardous conditions be recorded during weekly examinations.” Mach 

Mining, LLC, 35 FMSHRC 2937, 2938 (Sept. 2013). The standard does not require that all 

conditions be recorded. I credit Brown’s testimony that the cited conditions were not hazardous. 

 The Secretary argues that Respondent noted failed seals in the preshfit and onshift 

reports but did not note the condition in its weekly examination records. 7 Brown, however, 

testified that the test results were recorded in the “remarks” section of the preshift and onshift 

reports and not the hazard section because the cited seals were not hazardous. (Tr. 533, 538; Ex. 

G-39). The test results showed that there were soft spots in the exterior areas of the seals that 

were not completely cured. (Tr. 528). The air behind the seals was inert, with safe methane, 

oxygen, and nitrogen levels. Id. The inspector did not examine the seals himself and admitted 

that the oxygen levels behind the seals were safe. (Tr. 518). The seals are not hazardous while 

curing and are therefore not hazardous when soft spots fail to completely cure, especially when 

the seals do not serve to separate miners from unsafe atmosphere. At the time the citation was 

issued the outby “seals” were still curing and the cited seals functioned as stoppings rather than 

seals. (Tr. 528). I credit Brown’s testimony that the seals were not leaking and functioned to 

separate the two atmospheres. (Tr. 529). The Secretary, furthermore, did not present any 

evidence to show that the cited condition was a hazard but relied upon the fact that conditions 

recorded in the preshift and onshift examination books were not recorded in the weekly 

examination book. Although this condition was worth noting during preshift and onshift 

examinations, I find that it was not a hazard and Signal Peak did not violate Section 75.364(h). I 

hereby VACATE Citation No. 8476307. 

E. Citation No. 8464892; WEST 2013-48

On November 5, 2011, Inspector Johnson issued Citation No. 8464892 under section 

104(a) of the Mine Act, alleging a violation of section 75.202(a) of the Secretary’s safety 

standards. (Ex. G-33). Citation No. 8464892 states: 

 7

 The Secretary acknowledges that the conditions were recorded in the preshift and 

onshift reports and states that Citation No. 8476307 was a paperwork violation even though 

“[b]oth pre-shift and on-shift were essentially part of the weekly examination.” (Sec’y Br. at 

32). 

36 FMSHRC Page 896
In 3 right section entry 3 xc5 to xc6, a roof fall occurred that measured 

approximately 20 feet wide by 20 feet long by 12 feet high. The area was not 

controlled to protect persons from hazards related to falls of the roof. 

Uncontrolled roof strata had water penetration of the upper coal and parting seams 

that was not controlled. This exposed miners that travel this entry each shift to 

roof fall injuries that would be fatal. 

Id. Inspector Johnson determined that an injury was highly likely to occur and that such injury 

would be fatal. Further, he determined that the violation was S&S, the operator’s negligence was 

high, and that one person would be affected. Section 75.202(a) of the Secretary’s safety 

standards requires, in pertinent part that “[t]he roof, face and ribs of areas where persons work or 

travel shall be supported or otherwise controlled to protect persons from hazards related to falls 

of the roof, face or ribs and coal or rock bursts.” 30 C.F.R. § 75.202(a). The Secretary proposed 

a penalty of $70,000.00 for this citation. 

For the reasons set forth below, I vacate Citation No. 8464892. 

Discussion and Analysis

I find that Respondent did not violate section 75.202(a) because the roof control initiated 

by Respondent is what a reasonably prudent person would have provided. The Secretary's roofcontrol standard 30 C.F.R. § 75.202(a) is broadly worded. Consequently, the Commission has 

held that “[t]he adequacy of particular roof support or other control must be measured against the 

test of whether the support or control is what a reasonably prudent person, familiar with the 

mining industry and protective purpose of the standard, would have provided in order to meet the 

protection intended by the standard.” Cannon Coal Co., 9 FMSHRC 667, 668 (Apr. 1987). An 

examiner at the Mine recognized the hazard imposed by the roof, which led to Signal Peak’s 

efforts to repair it. (Tr. 557). Jensen as well as Ben Harcourt, the underground shift foreman, 

testified that Respondent shut down and dangered off the area, only allowing entrance to 

examiners and miners working to support the roof. (Tr. 579-80, 573-76). Intending to rebolt the 

roof, Respondent first set timbers. (Tr. 583). When the timbers did not solve the problem, 

Respondent set breaker rows going toward the hazard from both directions to stop a roof fall 

from spreading if it occurred. (Tr. 583). These timbers and breaker rows did not reach the area 

where the roof fall occurred, however, because miners left the area hours before the roof fell 

when they heard cracking and popping. (Tr. 551-52). Leaving the area was both safe and 

prudent for these miners. 

I reject the Secretary’s argument that the occurrence of the roof fall alone shows that the 

condition violated Section 75.202(a). Section 75.202(a) imposes upon Respondent the duty to 

maintain safe roof conditions in the manner that a reasonably prudent person would do. For an 

operator to support or control a roof, it must first identify any hazards and address those hazards 

in a safe manner. Here, Respondent identified a hazardous section of roof that it needed to 

rebolt. Respondent dangered the area and set timbers. When timbers were inadequate to control 

the roof, it set breaker rows. When the cited hazard became too dangerous for Respondent to 

approach it to set the timbers and breaker rows, Respondent evacuated the area. Respondent 

36 FMSHRC Page 897
approached its duty to support and control the roof under section 75.202(a) in a cautious and 

logical manner that limited risk to miners. It sought to bolt the roof, but approached the task in a 

way that protected miners from a roof fall. The Secretary argues that Respondent misunderstood 

the roof structure and should have amended its roof plan,8

 but I find that in this situation, a 

reasonably prudent person would have taken the same steps as Respondent did to meet the 

protection intended by the standard. The Secretary, furthermore, did not present any evidence to 

show that these actions were unreasonable. I hereby VACATE Citation No. 8464892. 

II. SETTLED CITATIONS 

A number of the citations at issue in these cases settled. By order dated July 3, 2013, I 

approved the parties’ settlement of Citation No. 8475644 in Docket No. WEST 2012-1325 and 

ordered Signal Peak to pay a penalty of $12,000.00. By order dated February 26, 2014, I 

approved the parties’ settlement of eight citations issued under section 104(a) of the Mine Act in 

Docket No. WEST 2012-1326 and ordered Signal Peak to pay a penalty of $7,484. By order 

dated February 26, 2014, I approved the parties’ settlement of six citations issued under section 

104(a) of the Mine Act in Docket No. WEST 2013-34 and ordered Signal Peak to pay a penalty 

of $1,034. 

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 Report, which was 

submitted by the Secretary. (Ex. G-20). At all pertinent times, Respondent was a large 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 Signal Peal Energy, LLC, to continue in business. 

The gravity and negligence findings are set forth above. 

 

 8

 Respondent was completing the process of amending its roof plan when the citation was 

issued. (Ex. R-27). Section 75.223, not 75.202(a), addresses the need to revise a roof control 

plan when conditions warrant. 

36 FMSHRC Page 898
IV. ORDER 

 For the reasons set forth above, I VACATE Citation Nos. 8464892, 8476307, 8475639, 

and 8475790 and I MODIFY Order No. 8475786. Signal Peak Energy, LLC, is ORDERED 

TO PAY the Secretary of Labor the sum of $15,000.00 within 30 days of the date of this 

decision.9 

 /s/ Richard W. Manning 

 Richard W. Manning 

 Administrative Law Judge 

Distribution: 

 

Timothy J. Turner, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 800, Denver, CO 80202-5708 (Certified Mail) 

Christopher G. Peterson, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 

80202-1958 (Certified Mail) 

 R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, 401 Liberty Avenue, Suite 

1500, Pittsburgh, PA 15222-1000 (Certified Mail) 

 9

 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 899
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: 412-920-8689 

April 4, 2014 

 

 

DECISION AND ORDER

Appearances: Pollyanna E.F. Hampton, Esq., U.S Department of Labor, Office of the 

Solicitor, Arlington, VA for the Secretary 

Eric L. Silkwood Esq., Hardy Pence PLLC, Charleston, WV for 

Respondent 

Before: Judge Steele 

STATEMENT OF THE CASE 

These cases are before the undersigned Administrative Law Judge on Petitions for 

Assessment of Civil Penalty filed by the Secretary of Labor against Respondent, Elk Run Coal 

Company (“Respondent” or “Elk Run”) 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 Charleston, West Virginia on 

January 9 and 10, 2014. The parties subsequently submitted post-hearing briefs. 

PROCEDURAL HISTORY 

 On April 18, 2013, MSHA inspector Jack Dempsey conducted an inspection of 

Roundbottom Powellton Deep Mine (“Powellton Mine”) and issued several citations. 

Respondent contested many of these issuances, four of which (three citations and an order) were 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

ELK RUN COAL COMPANY 

 Respondent. 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2013-1180 

A.C. No. 46-09163-327526-01 

Docket No. WEVA 2014-375 

A.C. No. 46-09163-338106-01 

Docket No. WEVA 2014-376 

A.C. No. 46-09163-338106-02 

Mine: Roundbottom Powellton Deep Mine 

36 FMSHRC Page 900
placed in three civil penalty dockets (WEVA 2013-1180, WEVA 2014-375, and WEVA 2014-

376).1

 The total assessed penalty for the three citations and orders was $197,386.00. On January 

9 and 10, 2014 a hearing was held on these remaining citations. 

STIPULATIONS 

The parties have entered into several stipulations, admitted as Parties’ Joint Exhibit 1.2

Those stipulations include the following: 

1. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health 

Review Commission and its designated Administrative Law Judge pursuant to Sections 

105 and 113 of the Federal Mine Safety and health Act of 1977 (“the Act”). 

2. Roundbottom Powellton Deep Mine, located in Boone County, West Virginia, is where 

the citations and orders at issue in this matter were issued. 

3. Roundbottom Powellton Deep Mine was operated by Elk Run on April 18, 2013. 

4. Rounbottom Powellton Deep Mine is a mine as that term is defined in section 802(h) of 

the Act. 

5. Elk Run was an “operator” as defined in Section 3(d) of the Act at the coal mine at which 

the citations and order at issue in this proceeding were issued. 

6. Elk Run is considered a large mine operator and Roundbottom Powellton Deep Mine is 

considered a large mine for purposes of 30 U.S.C. 820(i) 

7. The products of the mine at which the citation and order at issue in this matter were 

issued entered commerce, or the operator or products therefore affected commerce, 

within the meaning and scope of Section 4 of the Act. 

8. Operations of Elk Run at the coal or other mine at which the citations and orders at issue 

in this proceeding were issued are subject to the jurisdiction of the Act. 

9. The penalty which has been assessed for these violation pursuant to 30 U.S.C. § 820 will 

not affect the ability of Elk Run to remain in business. 

 1

 WEVA 2014-376 also included four citations (Citation Nos. 8156352, 8156059, 

8156062, and 8156063), that were not issued on April 18, 2014 and were unrelated to the instant 

matters. On March 31, 2014 Chief Judge Lesnick severed these four citations from WEVA 2014-

376 and placed them in a new docket, WEVA 2014-749. That docket will be disposed of 

separately. 

2

 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.”

36 FMSHRC Page 901
10. The individual or individuals whose signatures appear in Block 22 of the citations and 

orders at issue in this matter were acting in their official capacity and as an authorized 

representative for the Secretary of Labor when the citations and order were issued. 

11. None of the exhibits the parties intend to offer into evidence and that were exchanged 

prior to hearing will be subject to objection as to authenticity. This stipulation does not 

mean that either party stipulates to the truth of any allegation in the exhibits but merely to 

their authenticity. 

12. True copies of the citations and order at issue in this matter, with any and all modification 

and abatements, were served on Elk Run or its agent as required by the Act. 

13. The citation and order at issue in this matter, along with any and all modifications and 

abatements, were issued on the dates stated therein and were issued by a duly authorized 

representative of the Department of Labor, MSHA. 

14. The citations and order at issue in this matter contained in Exhibit A attached hereto are 

authentic copes of the citations and order at issue in this matter, including any and all 

modifications and abatements. 

15. The information contained in Exhibit A attached to the Secretary’s Petition for 

Assessment of Civil Penalty regarding the mine tonnage of Elk Run accurately reflects 

tonnage production at Roundbottom Powellton Deep Mine. 

16. The citations at issue in this matter were timely abated. 

17. The citations and order at issue in his matter, along with any and all modifications and 

abatements, may be admitted into evidence, without objection, although Respondent may 

dispute specific allegations contained within the citations and order. 

18. The approved roof control plan in effect on April 18, 2013 required entries to be a 

maximum of 20 feet wide in the area at issue in Citation No. 8154925. 

19. The approved roof control plan in effect on April 18, 2013 required spacing between roof 

bolts to be a maximum of 60 inches in the area at issue in Citation No. 8154925. 

20. The mesh screening panels at issue in Order No. 8154928 measured five feet by twelve 

feet and were provided to Elk Run by Jennmar. 

Joint Exhibit 1 (see also Transcript I, at 8).3

 3

 Hereinafter the transcript will be cited as “Tr.” Followed by the page number. There are 

two volumes of transcript here so, the first volume will be denoted “Tr. I,” and the second, “Tr. 

II,” 

36 FMSHRC Page 902
Citation No. 8154925

I. ISSUES 

 With respect to Citation No. 8154925, the issues to be determined are whether 

Respondent’s alleged violation of the Act on April 18, 2013 was significant and substantial 

(“S&S”), whether it was reasonably likely to result in fatal injury to 14 miners, whether it was 

the result of high negligence, and the appropriate penalty for the violation. 

II. SUMMARY OF TESTIMONY 

MSHA Inspector Jack Dempsey conducted an inspection of Roundbottom on April 18, 

2013.4

 (Tr. I, 20). He was accompanied by Safety Representative Terry Peterson.5 (Tr. II, 30-31, 

 4

 At hearing Jack Arnold Dempsey appeared and testified for the Secretary. (Tr. I,14). 

Dempsey graduated from High School in 1972 and attended more than three years of college. 

(Tr. I, 14-15). He started in the coal industry for Cannelton Coal in 1974. (Tr. I, 15-16). He 

worked at Bethlehem Steel Corporation in 1977 to October 1992 as certified electrician. (Tr. I, 

16-17). He was a certified electrician underground, surface, and prep plants and was certified for 

surface and underground mining. (Tr. I, 16, 18). He worked as a scoop operator, shuttle car 

operator, roof bolter operator, continuous miner operator, ran a motor, and acted as a general 

laborer. (Tr. I, 17). He also worked for a coal transportation company. (Tr. I, 17). From March 

2009 until the hearing, Dempsey worked for MSHA as an inspector. (Tr. I, 14). He received 

classroom training at the Mine Academy and on-the-job training from seasoned inspectors. (Tr. I, 

18). This training included instruction on roof control, ribs, and ventilation. (Tr. I, 19). As an 

inspector, Dempsey would travel airways, conduct and examine rock dust surveys, conduct noise 

surveys, examine equipment, observe work practices, and review records. (Tr. I, 20). He was not 

a certified foreman and had never conducted or assisted with an examination. (Tr. I, 114). 

5

 At hearing, Peterson was present and testified for Respondent. (Tr. II, 20). He had 

worked in the industry for 37 years, starting in 1974. (Tr. II, 20-21). He had acted as a roof 

bolter, run miners, run cars, and worked on longwalls. (Tr. II, 20-21). In his career, he acted as 

section boss, mine foreman, superintendent, fire boss, airway examiner, and safety 

representative. (Tr. II, 21). Peterson received 2 years of mine technology training from 

Community College. (Tr. II, 21). He was certified as a limited instructor by the government, 

taught classes at Elk Run, had annual retraining, and was certified as a foreman. (Tr. II, 21-22). 

Training would include instruction on areas where equipment was run, MMUs, ventilation, roof 

control plans, and first aid. (Tr. II, 23). He was involved in the UBB investigation, checking 

airways and working areas for the investigation team. (Tr. II, 24). In April 2013, Peterson was a 

safety representative and in would travel with the MSHA inspector, double check the work of 

examiners, and do paperwork. (Tr. II, 24-25, 28). When the inspector was not present, he would 

look for areas out of compliance. (Tr. II, 27-28). Peterson also worked with the anonymous 

complaint system, known as “Running Right”. (Tr. II, 25). Both Peterson and Phillip Saunders 

testified at length regarding this anonymous safety reporting system. (Tr. II 25-27, 77-79). 

36 FMSHRC Page 903
35, 60). Dempsey had already been inspecting the mine for two weeks.6

 (Tr. I, 115). Dempsey 

began inspecting Roundbottom when he was in training. (Tr. I, 20). However, the April 2013 

quarter was his first assignment there. (Tr. I, 114). When Dempsey arrived at the mine he 

informed the operator, reviewed the books and mine maps, considered possible hazards, and 

reviewed plans where he will travel that day.7 (Tr. I, 19, 21, 119). He would look at the roof, 

ribs, bolt spacing, entry widths, and the general condition. (Tr. I, 19). He also tried to coordinate 

with the safety representative to ensure they were able to get as much done as possible in the 

least amount of time. (Tr. I, 20-21, 119, 121). The mine had three active sections and two portals. 

(Tr. I, 115). Another inspector, Andy Sparks, was also inspecting the mine and had entered the 

mine that day from another portal. (Tr. I, 115-116). 

Dempsey and Peterson entered the mine from the portal but did not make it to the 

working section.8 (Tr. I, 26, 29, 31). During an inspection, the inspector must travel each air 

course in its entirety and using a ride expedites the process.9

 (Tr. I, 25). However, vehicles 

cannot fit in some overcasts, so in those areas the inspector must walk. (Tr. I, 25). 

From the portal, they traveled in the entry toward a set of double doors. (Tr. I, 26, II, 30-

31). No citations or hazards were observed on the way to the doors. (Tr. II, 36). These doors led 

to the primary escapeway. (Tr. I, 26, 122, II, 31). This was the first day Dempsey inspected the 

primary escapeway. (Tr. I, 116). The primary escapeway is the main exit from the mine for 

miners in the event of a disaster.10 (Tr. I, 30). In case of smoke or fire, the primary escapeway 

contained a lifeline with directional cones leading to the surface and SCSRs. (Tr. I, 30). This area 

should be clear of hazards as miners’ lives depend on it. (Tr. I, 30). 

6

 Earlier, Dempsey inspected the secondary escapeway (track entry) and found no 

violations, despite looking for them. (Tr. I, 116-118, 121-122). 

7

 At hearing, Dempsey reviewed the mine map (GX-7), showing the airways traveled 

during the inspection. (Tr. I, 22). A map is produced each quarter by the operator. (Tr. I, 22). 

Dempsey took a copy of the map with him to keep track of areas inspected. (Tr. I, 22). He used a 

color-coded legend to show different kinds of entries and the details of the examination. (Tr. I, 

22-23). On the map, the numbers mark where citations occurred. (Tr. I, 22-23). No. 1 was 

Citation 8144925, No. 2 was Citation No. 8154926, and No. 3 was Order No. 8154928. (Tr. I, 

24, 42-43). The green line showed Dempsey’s path that day in the escapeway. (Tr. I, 24, 27). The 

pink line was the return air course. (Tr. I, 27). The blue line was the mine track, which is usually 

the secondary escapeway. (Tr. I, 27-28). The yellow line was the secondary escapeway. (Tr. I, 

28). The orange line was the beltlines. (Tr. I, 28). 

8 There was a panel to the right of the portal called the McAllister Mains. (Tr. I, 29). A 

roof fall had occurred in this area indicating pressure. (Tr. I, 29). 

9

 The four-wheel vehicle is a golf cart with a metal frame and no top. (Tr. I, 26). The 

vehicle used on the day the instant citations were issued was nicknamed Ethel. (Tr. I, 26). 

10 Earlier, Dempsey inspected the secondary escapeway (track entry) and found no 

violations, despite looking for them. (Tr. I, 116-118, 121-122). 

36 FMSHRC Page 904
The four instant violations were issued in this escapeway. (Tr. I, 24, 31). Citation No. 

8154925 was issued between the No. 23 and No. 24 crosscuts.11 (Tr. I, 33-34, 43). The first 

condition cited was an entry that was 23 1/2 feet wide for a distance of 8 feet. (Tr. I, 34, 124, 

130-131, II, 31, 36-37, 60). According to the roof plan the entry should have been no more than 

twenty feet wide. (Tr. I, 35, 39). The area had been timbered with 6-inch posts on the right side 

facing outby, spaced 4 or 5 feet apart. (Tr. I, 34-36, 131, 156 II, 36). The 23 1/2- foot width was 

measured from the rib on the left to the timbers, meaning the area was wide even with the 

timbers. (Tr. I, 35, 37-38, 131, 135 II, 31). The timbers stretched the entire block but the wide 

area was in the center. (Tr. I, 37). There was 3 to 4 feet of open space between the timbers and 

the rib, meaning the original cut in 2008 was 27-28 feet wide. (Tr. I, 36, 124, 262, II, 7). 

Dempsey hoped the timbers were placed when the area was cut, but he was not sure. (Tr. I, 124-

125). The block of coal where this wide area was located was probably sixty feet square. (Tr. I, 

122-123). 

Generally, roof control plans determine the width of entries.

12 (Tr. I, 204). Acccording to 

that plan, Respondent was permitted to mine some belt entries and slopes 22 feet wide, but not 

this entry. (Tr. I, 125, 151-152, II, 113). Dempsey did not recall any mine where entries were 

wider than 25 feet. (Tr. I, 152). He never required an operator to add a shelter hole in a track 

entry or slope. (Tr. I, 152). Some safeguards allow such shelter to be 5 feet in excess of the 

track entry.

13 Tr. I, 153-154). Phillip Saunders testified that some mines have 3 1⁄2 foot wide, six 

11 Dempsey reviewed Citation No. 8154925 (GX-1) and the notes he took that day (GX5). (Tr. I, 31-32). His notes included the weekly examination record for the week of the citation, 

a record of a fire drill in the area April 15 and April 16, 2013, and a small map. (Tr. I, 32-33). 

12 Roof control plans are mine specific. (Tr. I, 153-154, 204). Before a roof control plan 

is made, an engineering study is used to determine ground cover, the seam, and the types of 

pressure applied. (Tr. I, 204). Weight is determined using a computer program. (Tr. I, 204). The 

weight is used to create a safety factor. (Tr. I, 204). For example, a safety pillar of 2.0 means the 

pillars are capable of supporting twice the weight that is being applied. (Tr. I, 205). In a situation 

like Roundbottom where there is multiple seam mining, another computer program is used to 

determine the different loads. (Tr. I, 205). Then, roughly every six months, the roof control 

department or an inspector will determine if the plan is adequate. (Tr. I, 204). 

13 Safeguards are directives issued to a mine concerning transportation at that mine. (Tr. 

I, 203-204). A safeguard allowing wider entries had not been used since the 1990’s. (Tr. I, 203). 

36 FMSHRC Page 905
foot deep shelter holes.14 (Tr. II, 112-113). He stated that small areas where the roof exceeds 

the plan are permitted. (Tr. II, 113). 

Peterson and Saunders testified that the timbers were placed in this area to narrow the 

wide entry so it would comply with the roof control plan. (Tr. II, 36, 70). They also noted that if 

an area is timbered, the examiner would assume it was the proper width. (Tr. II, 37, 113-114). 

Dempsey believed the condition, several extra feet of width in the entry, would be 

obvious. (Tr. I, 137). This was because there were additional bolts and timbers in this area. (Tr. I, 

38, 129, 137, II 60). There was not simply an additional row of bolts; instead each row of bolts in 

this particular area had an additional bolt. (Tr. I, 127-128). There should have been four bolts in 

each row, but there were five to six. (Tr. I, 38-39, 129). The extra bolts and timbers were 

installed during development, therefore the operator knew about the condition. (Tr. I, 127-128, 

137, II, 70). However, even after the timber was added, the entry was still too wide and obvious. 

(Tr. I, 137-138). 

Harding never noticed the condition before and did not think it was obvious. (Tr. I, 266, 

II, 19). He learned from the citation that there was an 8-foot area that was too wide. (Tr. I, 266). 

He knew timbers indicated a wide entry, but he did not set any additional timbers. (Tr. II, 12).

The hazards associated with the cited condition would include roof fall resulting in fatal 

accident. (Tr. I, 39). The cited standard is one of the “rules to live by” that is a root cause of fatal 

injuries. (Tr. I, 40). There was also danger of total collapse. (Tr. I, 39). However, the additional 

bolts and the timbers provided additional beam support for the entry. (Tr. I, 132). 

14 At hearing Phillip Saunders appeared and testified for Respondent. (Tr. II, 71). 

Saunders worked at Alpha Natural Resources as a Vice President of Operational Improvements, 

a job he held from July 2012. (Tr. II, 71, 73). Saunders began working in the coal industry in 

1994 for Massey Energy and worked several engineering jobs. (Tr. II, 71-73). Saunders had a 

professional engineering license in West Virginia, mine foreman’s papers, and AMT card, mine 

rescue certification, MSHA trainer’s card, and a PE license a black hat. (Tr. II, 71-73). He had 

worked as section foreman, mine foreman, examiner, superintendent, and then over to 

management for various projects at Massey. (Tr. II, 72-73). Saunders was at Roundbottom on 

April 18 to supervise an operational improvement team. (Tr. II, 74). They had been at the 

location for five weeks. (Tr. II, 75). The goal of the team was to improve compliance, safety, and 

productivity. (Tr. II, 75). During trips, Saunders liked to discuss violations, condition changes, 

things at the face, and training with mine management. (Tr. II, 75). The team observed activity at 

the face like loading of coal, cut depths, dust procedures, ventilation, processes for supplying 

equipment operators, bottom conditions, communications, and practices at the mine from start of 

the shift to the end. (Tr. II, 76-77). They ask for 15 to 20 minutes at the start of the shift to talk to 

the crews, give them updates on changes conditions, ensure they are going over the methane dust 

control plan, the roof control plans, and make sure everyone knows what the plans are. (Tr. II, 

77). The crew provides hands-on training in the face area. (Tr. II, 77). 

36 FMSHRC Page 906
Dempsey was not sure how long this condition had existed. (Tr. II, 47). He believed it 

had been some time because the timber had begun to decay. (Tr. I, 37, 47). Further, moss had 

grown on the timbers. (Tr. I, 37, 47). The timbers had not recently been placed. (Tr. I, 48). The 

area was developed in 2008 or 2009. (Tr. I, 36, 124, 139). 

The second condition cited in this area was one bolt spaced 70 (rather than the required 

60) inches from another bolt.15 (Tr. I, 34, 39-40, 126, 268). In a 60-foot entry, 26-27 feet wide; 

Dempsey would expect bolts every four feet, with no more than five feet between rows. (Tr. I, 

126-127, 129). This condition could be fixed by setting a timber. (Tr. I, 266-267). 

The condition was somewhat obvious. (Tr. I, 40). Dempsey noticed it because he was 

alerted by the wide entry and was measuring. (Tr. I, 40). Examiners were trained to look for this 

kind of condition, so it was obvious. (Tr. I, 40). Examiners and inspectors had missed this 

condition since the area was developed. (Tr. I, 140). 

Only one set of bolts was found over-spaced. (Tr. I, 268). Harding testified that one overspaced bolt would be difficult to see. (Tr. I, 267, II, 19). There were roughly 1,200 bolts between 

this area and the location of the final citation issued. (Tr. I, 267-268).

The hazards associated with the bolt spacing would include being crushed by a roof fall. 

(Tr. I, 41). A fatal roof fall injury occurred at Kingston Resources No. 1 when the bolt spacing 

was just inches off. (Tr. I, 41-42). Dempsey conceded that one bolt spaced 10 inches too wide 

did not, by itself, make an accident likely. (Tr. I, 134-135). However, it might lead to an injury 

based on geological conditions. (Tr. I, 135). Here, the top appeared solid without skin issues, 

straps, or pie pans at the time of the citation. (Tr. I, 135). The pillars were stable. (Tr. I, 135). 

This condition had existed since the area was bolted, as bolts were set during the mining 

cycle. (Tr. I, 48). It had been years since mining occurred in this area. (Tr. I, 48). Other than this 

one area, there were no other problems with bolt spacing. (Tr. I, 133).

The final condition in this area was loose draw rock. (Tr. I, 34, 29-30, 128, II, 38, 60). 

Draw rock is generally slate that breaks loose from the roof. (Tr. I, 133, II, 40, 83). Most of the 

roof is solid sandstone. (Tr. II, 39). Different kinds of stone do not stick together well, so if there 

is a layer of shale “skin” a few inches deep below the sandstone, then draw rock develops. (Tr. I, 

133, II, 38-9, 82-83). It is caused by temperature, barometric pressure, seasonal change in the 

mine, drying conditions, and the velocity of intake air. (Tr. I, 236, 261, II, 38, 40-41). Draw rock 

occurs all the time and can change daily or from entry to entry. (Tr. II, 40-41). This mine had 

draw rock everywhere. (Tr. I, 133). Areas under a stream or hollow, as the cited area was, can 

produce draw rock quickly. (Tr. I, 265, II, 83-85). When draw rock is found it must be scaled 

(pulled down) or dangered off and supported. (Tr. I, 236-237, II, 39). 

 15 Harding testified that torque tension bolts were used in this area (and in most of the 

primary escapeway). (Tr. I, 265). The plan requires 4-foot resin bolts. (Tr. I, 265). The torque 

tension bolts were longer and provided more support that the required bolts. (Tr. I, 265-266). All 

of the bolts in this entry would have been installed on advance. (Tr. I, 266).

36 FMSHRC Page 907
The citation did not state whether one location or many needed scaling. (Tr. I, 128). It 

also did not say where this spot was in relation to the other conditions. (Tr. I, 128). Harding 

testified that this condition was not present during his examination. (Tr. II, 19).

The condition was obvious; there was draw rock on the bottom and some draw rock on 

the top that needed to be scaled. (Tr. I, 34, 39, 42). Dempsey and Peterson would not proceed 

past the condition. (Tr. I, 34). They stopped and scaled, measured, and evaluated. (Tr. I, 34). The 

number of bolts in the area indicated roof control problems. (Tr. I, 34). The mine had a history of 

draw rock issues in intakes and returns. (Tr. I, 42). However, other than this area, there was only 

minor sloughage during the inspection. (Tr. I, 130). 

The hazard associated with draw rock is that it can fall and pull down the lifeline or break 

the lifeline, which can constitute a hazard when smoke is present. (Tr. II, 115). It can also be at 

tripping hazard, which would be important in an emergency escapeway. (Tr. I, 248-249, II, 115). 

Finally, the draw rock itself can be a striking hazard. (Tr. I, 42, II, 116). 

With respect to all three conditions, miners would work or travel in the area. (Tr. I, 43). 

An examiner would travel this air course weekly. (Tr. I, 43). The last examination occurred a day 

before the citation. (Tr. I, 44). The area would also have to be available in case of an emergency. 

(Tr. I, 43-44). Further, quarterly evacuation drills were conducted at the mine for all three shifts. 

(Tr. I, 43, 242-243). The drills alternated escapeways, so miners would evacuate this area twice a 

year. (Tr. I, 43, 154, 242). A lifeline went directly through this area, though Dempsey could not 

recall where. (Tr. I, 44-46). He did not believe it ran under the draw rock. (Tr. I, 47). In 

Dempsey’s experience, when miners evacuate they walk side by side. (Tr. I, 46). On April 15, 

2013, 14 men, including a supervisor, participated in a fire drill here. (Tr. I, 45). On April 16, 

2013, 12 men, including a supervisor, did so. (Tr. I, 44). Therefore examiners and drill 

participants were exposed to the cited conditions. (Tr. II, 45-46). However, the fact that the fire 

drill occurred two days before this citation was a coincidence. (Tr. I, 154). The citation would 

not have been issued in the same manner if the drill had not just occurred. (Tr. I, 154). 

Harding testified that other than the weekly exam, no one would be in the cited area for 

two months or more. (Tr. I, 242-243). He did not believe miners normally worked or traveled in 

this area, it was not a “main track.” (Tr. I, 243). He also testified that during fire drills he would 

hold onto the lifeline. (Tr. II, 15-16). However, in his deposition testimony (GX-10) he conceded 

that he did not hold onto lifelines during fire drills. (Tr. II, 17). Saunders testified that goal of a 

fire drill was to make a life-like simulation. (Tr. II, 109-111).

This condition was marked S&S because it violated a safety standard, the violation 

contributed to a hazard, and there was a reasonable likelihood that the hazard would cause injury. 

(Tr. I, 51-52). There was exposure to the condition from miners traveling in the area regularly. 

(Tr. I, 52). The injury would be significant, perhaps fatal crushing injuries. (Tr. I, 52). 

Dempsey believed an injury would be reasonably likely, assuming continued mining 

operations. (Tr. I, 52). The entry was wide, there were widely spaced bolts, the pillar size was 

reduced and there was draw rock in the area that could result in a roof collapse. (Tr. I, 52, 151). 

Wide entries cause the beam to stretch over a wider area. (Tr. I, 151). However, Dempsey did not 

36 FMSHRC Page 908
do any analysis to determine whether the pillars could hold the roof. (Tr. I, 151). A wide entry is 

automatically a hazard. (Tr. I, 151). The likelihood is not based on odds, instead it is based on 

the fact that it is known that fatal roof falls in the mining industry are caused by wide entries and 

therefore the “reasonably likely” finding was appropriate. (Tr. I, 155-156, 200-201). Also, coal is 

80 pounds per cubic foot and rock is 120 pound per cubic foot, so it would not take a large roof 

fall to weigh hundreds of pounds. (Tr. I, 52-53). 

The cited condition would affect 14 persons because the drill record showed that 14 

miners were exposed to a total collapse of the entry during an escapeway drill. (Tr. I, 53, 155-

156).

This citation was marked for high negligence; however Dempsey struggled with the 

negligence determination. (Tr. I, 53, 142, 145). At first, he believed Respondent displayed 

moderate negligence because there was an attempt made to correct the condition and because it 

was not overly obvious. (Tr. I, 53, 55, 143-144). Dempsey’s notes show that, “some efforts were 

made by timbering but found that effort was improperly performed. (Tr. I, 144). This was based 

on the examination Jesse Harding conducted the day before.16 (Tr. I, 49, 54-55, 119-120, 259-

260, II, 7-8). That record stated that the top was scaled, a wide bolt found, a rib to bolt was wide, 

timbers were set, areas dangered off, and the lifeline was repaired in several places. (Tr. I, 49, I, 

232-233). Dempsey also noted that he did not deem the condition “high or reckless.” (Tr. I, 144). 

However, he then reconsidered his negligence determination and no longer believed there 

were mitigating circumstances. (Tr. I, 144-145, 56-57). Dempsey did not see any indication that 

the correction noted by Harding actually occurred. (Tr. I, 51,53, 57, 148). The record did not 

indicate where scaling occurred, where the lifeline was worked on, where new timbers were set, 

the width of the entry, or if the wide bolts were corrected. (Tr. I, 50-51, 53). Also, Dempsey did 

not know where timbers were dangered off. (Tr. I, 50). There was an incomplete effort to repair, 

 16 Jesse Glen Harding was present at the hearing and testified for Respondent. (Tr. I, 

217). Harding started in the mining industry in 2007 and worked for Performance Coal and 

Logan’s Fork on longwalls before Respondent. (Tr. I, 217). At Roundottom and worked on the 

move crew, production, shuttle car, in that capacity he examined gas levels, roof, ribs, trip 

hazards, roadways, and ventilation controls. (Tr. I, 218-219). He then worked as outby foreman 

and did so at the time of the citations. (Tr. I, 218, 220). In that postion, he conducted pre-shift 

examinations, added mesh or support, set belt heads, checked belts, checked the track, check 

wide entries, checked bolt spacing, and checked the roof and ribs. (Tr. I, 219, 224, II, 6-7). 

Harding took care of any hazards outby to ensure safe work and travel. (Tr. I, 219, 224). If he 

identified a hazard he dangered it off and recorded it in the exam book. (Tr. II, 6-7). Harding had 

a West Virginia foreman, mining, gas, and dust cards and had conducted examinations since he 

was an apprentice. (Tr. I, 220-221, II, 6). He received annual refresher training, including an 

eight-hour class on plans, roof control, MMUs, violations, accidents, escapeway methods, and 

rescuers. (Tr. I, 221-222). He received foreman recertification every other year where law, plans, 

and violations were discussed. (Tr. I, 222-223). Further, Alpha had an examiners class that 

included instruction on the law and a mine simulator. (Tr. I, 223). He received step-by-step 

instruction on bolts, roof, ribs, trip hazards, and lifelines. (Tr. I, 223). The course also covered 

pre-shift, weekly, and supplemental examinations. (Tr. I, 223).

36 FMSHRC Page 909
but only a full repair would be sufficient. (Tr. I, 57, 145, 148). The partial repair indicated that 

there was awareness of the cited condition. (Tr. I, 57). The use of timbers in other areas of the 

mine did not mitigate the lack of effort here. (Tr. I, 57, 149). At hearing, Harding could not recall 

which areas were scaled. (Tr. I, 264). 

Dempsey also considered the mindset of an examiner and realized he should be looking 

for things that were not overly obvious. (Tr. I, 55-56, 142, 145). Harding was trained and should 

have been alert. (Tr. I, 55, 142). Further, management knew the condition existed as extra bolts 

and timbers were added. (Tr. I, 56). The condition had existed for some time (though Dempsey 

could not verify the time). (Tr. I, 142). 

In addition, Dempsey felt Respondent’s history of roof falls should have provided 

warning that roof control problems occurred at this mine. (Tr. I, 202-203). Respondent should 

have had heightened awareness to the dangers posed by the cited conditions. (Tr. I, 203). 

Respondent was lucky no roof falls had occurred here, it was a matter of time. (Tr. I, 203). 

The fact that there was an inadequate examination did not effect the high negligence 

designation. (Tr. I, 154). However, Dempsey conceded that if the condition had existed since 

2008 and this area was a primary escapeway since that time, then the high negligence finding 

would be undercut. (Tr. I, 142-143). Harding testified that this area had been the primary 

escapeway since 2008 because the location allowed miners to walk in fresh air. (Tr. I, 262, II, 

11-12). Dempsey also conceded that a wide entryis not per se high negligence. (Tr. I, 149). 

Dempsey also noted that Peterson did not offer any mitigating circumstances at issuance. 

(Tr. I, 57). To mitigate the condition without correcting it, Respondent could have hung danger 

tags, noted the condition in the exam book, or made marks for new timbers. (Tr. I, 150). The 

danger tags would inform miners that the condition existed. (Tr. I, 150). The tags could have 

been placed where the area was wide and where the bolts were misplaced. (Tr. I, 150). 

The condition was abated when the draw rock was pulled down and the timbers were 

reset between the left rib and the right timber line. (Tr. I, 57-58). No timbers were moved, two or 

three were added where the entry and bolts were too wide. (Tr. I, 54, 156-157). The abatement 

occurred between the issuance and noon on April 23. (Tr. I, 58). 

III. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The findings of fact 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 

36 FMSHRC Page 910
judge is not required to discuss all evidence and failure to cite specific evidence does not mean it 

was not considered). 

1. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The 

Evidence That 30 C.F.R. §75.202(a) Was Violated.

On April 18, 2013, Inspector Dempsey issued a 104(a) Citation, No. 8154925, to 

Respondent. Section 8 of that Order, Condition or Practice, reads as follows: 

The Operator has failed to properly support the primary escapeway to the #1 

working Section. Between #23 and #24 xcuts adjacent to #9 beltline the following 

conditions exist: 1) Entry is 23.5’ wide for a distance of 8’, 20 Bolt pattern 

measures 70” between bolts in one spot at this location, 3) Loose draw rock is 

present that needs scaled. 

Standard 75.202(a) was cited 73 times in the two years at mine 4609163 (73 to 

operator, 0 to contractor). 

(GX-1). 

 The cited standard, 30 C.F.R. § 75.202(a) (“Protection from falls of roof, face and ribs”), 

provides the following: 

(a) The roof, face and ribs of areas where persons work or travel shall be 

supported or otherwise controlled to protect persons from hazards related to falls 

of the roof, face or ribs and coal or rock bursts. 

30 C.F.R. § 75.202(a). 

The Secretary presented credible evidence that Respondent violated the cited standard, as 

described in the citation. (Tr. I, 34, 29-30, 39-40,124, 126, 128, 130-131, 268, II, 36-38, 60). In 

its brief, Respondent acknowledges the existence of the violation. (Respondent’s Post-Hearing 

Brief at 19). In light of this fact, and the evidence presented, the Administrative Law Judge finds 

that this citation was valid. 

2. The Violation Was Reasonably Likely to Result in a Fatal Injury And Was 

Significant And Substantial In Nature 

Inspector Dempsey marked the gravity of the cited danger in Citation No. 8154925 as 

“Reasonably Likely” to result in “Fatal” injury to 14 persons. (GX-1). These determinations are 

supported by a preponderance of the evidence. 

The Mine Act requires that “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: 

36 FMSHRC Page 911
[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. § 75.202(a) is stated directly in 

the language of the rule. Specifically, the standard is designed to protect miners from the 

“hazards related to falls of the roof, face or ribs and coal or rock bursts.” Those hazards include 

crushing injury from rock fall or roof collapse, disorientation during an emergency from the 

severing of a lifeline, or tripping injury from fallen rock. (Tr. I, 39-42, 248-249, II, 115-116). 

Inspector Dempsey credibly testified that the cited conditions (the wide entry, the improperly 

spaced bolt, and the draw rock) made these hazards reasonably likely. Specifically, Dempsey 

testified that miners worked and traveled in this area regularly. (Tr. I, 43-44, 52). Those working 

in the area would include the examiner and also miners from the section using the escapeway 

during a fire drill or actual emergency. (Tr. I, 43, 242-243). In fact, Dempsey testified that these 

conditions occurred near the lifeline, the area where miners would be most likely to move. (Tr. I, 

44-46). Therefore, the undersigned finds that miners were reasonably likely to be exposed to the 

cited condition. 

Dempsey also credibly testified that this exposure would be reasonably likely to result in 

injuries to no fewer than 14 miners. He testified that the cited condition could have caused rock 

falls or roof collapse to harm miners during a fire drill or actual emergency. (Tr. I, 53, 155-156). 

Dempsey testified that that fatal roof falls in the mining industry are known to be caused by wide 

entries and therefore the “reasonably likely” finding was appropriate. (Tr. I, 155-156, 200-201). 

Also, he noted that coal is 80 pounds per cubic foot and rock is 120 pound per cubic foot, so 

even a small roof fall could weigh hundreds of pounds, increasing the chances of a fatality. (Tr. 

I, 52-53). With respect to the person affected, the evidence shows that as many as 14 miners 

participated in fire drills or would actually be working on the section in the event of an 

emergency. (Tr. I, 45, 53, 155-156). Dempsey credibly testified that in the event of a roof fall or 

collapse, all of these miners would be affected. (Tr. I, 53, 155-156). Therefore, the 

Administrative Law Judge finds that the preponderance of the evidence supports the Secretary’s 

gravity designations. 

 Respondent argued that this citation (as well as Citation No. 8154927 and Order No. 

8154928) should not have been marked as affecting 14 persons. This argument is not supported 

by the evidence. 

 Respondent argued that the cited entry was an escapeway, rather than a regular travelway 

for the section crew, and that only one miner (the examiner) would regularly be in this area. 

(Respondent’s Post-Hearing Brief at 31). The uncontested testimony supports a finding that up to 

14 miners would be in this area no fewer than twice a year, during fire drills. (Tr. I, 43, 45, 154, 

242). More importantly, this area would always be available to miners in the event of an 

emergency. The area must be available for use every day because at any given time an event 

might occur that would require its use. 

36 FMSHRC Page 912
 The Administrative Law Judge finds this situation to be analogous to the situation in 

Cumberland Coal Resources, LP, 33 FMSHRC 2357 (2011). In that case, the Commission held 

that with respect to emergency standards, when a violation is issued, “presumably no emergency 

exists at the moment...if an emergency does occur, it is imperative that the requirements of the 

evacuation standard be met at that time.” Id. at 2367. While it is true (as Respondent notes) that 

the cited standard was not an “emergency standard,” those standards are meaningless if the 

escapeway entry is not safe. Miners cannot use a lifeline or breathe through an SCSR if those 

items (or the miners) are trapped under a collapsed roof. Furthermore, this entry would not have 

been set aside or inspected if not for the fact that it was to be used in an emergency. 

 Respondent also argued that, even if this violation is considered in light of the emergency 

standards, that all 14 miners would not be affected because a roof fall would not harm everyone. 

(Respondent’s Post-Hearing Brief at 32-33). It argued that the testimony of the inspector to the 

contrary was “pure speculation.” (Id.). The undersigned found the Inspector’s testimony to be 

credible. In the event of a massive roof fall or entry collapse, all of the miners would be affected 

and injured by the fall. Further, if the fall occurred during an emergency miners could be trapped 

in treacherous conditions without the ability to escape. Therefore, the cited condition affected 14 

miners. 

Respondent also offered several arguments asserting that an injury was unlikely. 

However, as Respondent discussed those arguments in relation to the S&S designation, they will 

be discussed infra. 

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). 

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. § 75.202(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 – Inspector Dempsey credibly 

testified that the violation contributed to the safety hazard of a miner be crushed or struck in a 

36 FMSHRC Page 913
roof fall or collapse. (Tr. I, 51-52). The inspector testified that each of the individual conditions 

at issue here would contribute to some hazard. 

Specifically, the wide entry increased the chances of roof fall and added to the danger of 

a total collapse. (Tr. I, 39-40, 52, 151). The condition contributed to this danger because wide 

entries cause the support “beam” of the roof to stretch over a wider area, creating additional 

stress. (Tr. I, 151). Therefore, a wide entry is automatically a hazard. (Tr. I, 151). See United 

Mine Workers of America v. Dole, 870 F.2d 62, 559 (D.C. Cir. 1989)(Holding that roof falls pose 

one of the most serious hazards in the mining industry); see also Consolidation Coal Co., 6 

FMSHRC 34, 37 (Jan. 1984), Eastover Mining Co., 4 FMSHRC 1207, 1211 n. 8 (Jul. 1982), and 

Halfway Incorporated, 8 FMSHRC 8, 13 (Jan. 1986) (noting the inherently dangerous nature of 

mine roofs). Dempsey also noted that this condition was one of the “rules to live by” that has 

been found by MSHA to be the root cause of fatal injuries. (Tr. I, 40). The wide bolt also 

contributed to crushing injury from roof fall. (Tr. I, 41). Dempsey noted a fatal roof fall injury 

occurred at Kingston Resources No. 1 when a bolt was spaced just inches off the approved roof 

plan. (Tr. I, 41-42). Finally, the draw rock contributed to the hazard of tripping or severing the 

lifeline, which could cause fatal injury in an emergency. (Tr. I, 248-249, II, 115). The draw rock 

was also evidence that rock was falling from the top, creating a striking hazard. (Tr. I, 42, II, 

116). In addition to these individual hazards, the cumulative effect of the conditions heightened 

the contribution. (Tr. 52, 151). In light of these facts, the Administrative Law Judge finds that the 

cited condition contributed to a discrete safety hazard. 

Respondent argued that this condition did not contribute to a safety hazard. However, this 

argument was not compelling. Specifically, Respondent asserted that the cited conditions did not 

contribute to a hazard because, despite their existence for seven years, the entry showed no signs 

of instability. (Respondent’s Post-Hearing Brief at 21). Respondent noted the fact that the area 

was lined with properly spaced roof support timbers and roof bolts to ensure stability. (Id.). 

Further, it noted that the cited conditions were in the center of the entry, rather than at the 

intersection, where stress is the greatest. (Id. at 21-22). It argued that these supplemental 

measures withstood roof stresses for numerous years without incident and therefore did not 

contribute to a hazard. (Id.) 

The fact that a roof fall had not occurred in this area does not mean that the condition did 

not contribute to the hazard of a roof fall. See, e.g. Rushton Mining Company, 9 FMSHRC 800, 

810 (Apr. 1987)(ALJ Broderick) (“The fact that an injury did not occur here is hardly evidence 

that the violative practice did not contribute to a hazard likely to result in injury.”) As discussed 

supra, Inspector Dempsey credibly testified as to the ways that the cited conditions made a roof 

fall more likely. While these conditions did not guarantee that a roof fall would happen, they 

contributed to the possibility of that hazard. Further, the Administrative Law Judge is not as 

sanguine about the conditions in the cited area as Respondent. In addition to the wide entry and 

wide bolt, draw rock was found uncontrolled in this area. (Tr. 34, 29-30, 128, II, 38, 60). Perhaps 

more importantly, several months after the citation was issued, a rock fall occurred in this same 

entry. Further, as discussed with respect to the number of persons affected, this entry would be 

used in the event of an emergency. It is reasonable to believe in such a situation that usual or 

extreme pressure would be placed on this area, exacerbating the hazard. The Administrative Law 

36 FMSHRC Page 914
Judge finds this to be persuasive evidence that the cited entry was less stable than indicated by 

Respondent. 

Furthermore, the existence of the roof control plan attests to the fact that the cited 

conditions contributed to a hazard. Inspector Dempsey credibly testified regarding the procedure 

by which operators, and MSHA, determine the maximum width of entries and the spacing of 

bolts. (Tr. I, 153-154, 204-205). There is no question that the operator exceeded these limits. (Tr. 

34, 124, 130-131, II, 31, 26-37, 60, JX-1). Presumably, if it were safe for entries in Roundbottom 

to be 23 1⁄2 feet wide or for bolts to be spaced 70-inches apart, the plan created by the Respondent 

and approved by MSHA would reflect those distances. That the plan dictates entries of 20 feet 

and bolts spaced at 60-inches indicates that the cited conditions are inherently unsafe and would 

contribute to the hazard of a roof collapse or fall. Therefore, the second prong of Mathies is met. 

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 contributed to in this matter would be reasonably likely to result in injury. 

The Commission clarified the third element of the Mathies test in Musser Engineering, 

Inc., and PBS Coal Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”) (affirming an S&S 

violation for using an inaccurate mine map). The Commission held that the “test under the third 

element is whether there is a reasonable likelihood that the hazard contributed to by the violation, 

i.e., [in that case] the danger of breakthrough and resulting inundation, will cause injury.” Id. at 

1281. Importantly, it clarified that the “Secretary need not prove a reasonable likelihood that the 

violation itself will cause injury.” Id. The Commission concluded that the Secretary had 

presented sufficient evidence that miners who broke through into a flooded adjacent mine would 

face numerous dangers of injury. Id. The Commission also emphasized the well-established 

precedent that “the absence of an injury-producing event when a cited practice has occurred does 

not preclude a determination of S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 

2005); Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996). 

If the hazard contributed here were realized, specifically if a roof fall or total roof 

collapse were to occur, an injury would be reasonably likely. If the roof fell, miners could be 

struck by extremely heavy falling material and could even be crushed. (Tr. I, 39-42, 248-249, II, 

115-116). As miners worked or traveled in this area (both examiners and miners evacuating in a 

drill or emergency) there was exposure to the hazard. (Tr. I, 43-44, 52, 155-156). There is no 

question that miners being struck or crushed by rock would be injured. 

Respondent also argued that the hazard contributed to created no likelihood of an injury. 

However, this argument was not compelling. Specifically, Respondent asserted that the cited 

conditions created no likelihood of injury because the condition had existed for a long time and 

was stable. (Respondent’s Post-Hearing Brief at 21). It noted that under continued normal 

mining operations that the ribs and roof were competent and that there was no evidence or stress 

or that the hazard would contribute to an event that would lead to an injury. (Id. at 22). 

As noted supra, the Administrative Law Judge found that the cited condition would 

contribute to a roof fall. As further noted, there is no question that a roof fall would be 

36 FMSHRC Page 915
reasonably likely to result in an injury. The issue at this stage of the inquiry is whether the hazard 

contributed to by the violation, in this case a roof fall, would result in injury. The third element 

presupposes that the roof fall is realized and asks whether an injury would be expected to result. 

See PBS Coals at 1280-81 see also United Taconite, LLC, 2014 WL 1010076, *12 (Feb. 

2014)(ALJ Lewis)(explaining that the third element of Mathies presupposes the hazard is 

realized). Respondent’s argument does not aid the Administrative Law Judge in determining 

whether a roof fall or collapse would, or would not, result in an injury. 

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). It cannot 

be credibly argued that an injury caused by a roof fall or mine collapse would be anything other 

than serious. In fact, a fatal injury is the most likely result. 

As a result of these factors, the undersigned finds that the Secretary proved the violation 

was S&S by a preponderance of the evidence. 

3. Respondent’s Conduct Did Not Display “High” Negligence.

In the citation at issue, Inspector Dempsey found that the operator’s conduct was highly 

negligent in character. (GX-1). 

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 

circumstances.” Low negligence is served for situations where there are “considerable” 

mitigating circumstances. 

The Administrative Law Judge finds that while Respondent should have known about the 

violation, there were mitigating factors. With respect to knowledge, well-settled Commission 

precedent recognizes that the negligence of an operator’s agent is imputed to the operator for 

36 FMSHRC Page 916
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 had some 

knowledge of at least one of the cited conditions, the wide entry. Specifically, evidence shows 

Respondent was aware of the fact that the entry was wide at development, because it had put in 

timbers and extra bolts. (Tr. I, 36, 124-125, 262, II, 7). For some reason, in placing the timbers 

Respondent only narrowed the entry to about 23 feet, rather than the required 20 feet. (Tr. 36, 

124, 262, II, 7). However, that does not change the fact that Respondent, at one time, knew the 

condition existed. Perhaps more importantly, Respondent should have known the condition was 

present. The wide entry and the widely spaced bolt had existed for around 7 years. This area was 

inspected weekly by Respondent’s agent and had been inspected by Harding just the day before 

the instant citation. (Tr. I, 43-44, 49). Harding and the other, previous examiners were tasked 

with finding just the types of conditions found here. (Tr. I, 55-56, 142, 145). Therefore, 

Respondent should have known about the cited condition. 

While the Administrative Law Judge affirms the inspector’s finding that Respondent was 

negligent, the evidence does not support a finding that this negligence was high; there were 

mitigating circumstances. 

Inspector Dempsey noted that one of the reasons he found the cited conditions to be the 

result of high negligence was that the cited conditions were obvious. However, he also noted that 

he struggled with this determination and that he initially did not believe the condition was 

obvious. (Tr. I, 53, 55, 143-144). The Administrative Law Judge finds that the Inspector’s initial 

determination was better supported by the evidence. The cited condition occurred in a relatively 

small area, an eight-foot area in the center of an entry. (Tr. I, 34, 124, 130-131, II, 31, 26-37, 60). 

Further, the earlier, incomplete attempts to correct the condition (setting timbers, adding 

additional bolts) probably masked the fact the condition persisted. (Tr. I, 144, II, 37, 113-114). 

Perhaps most importantly, this area had been the primary escapeway since it was developed in 

2008. (Tr. I, 262, II, 11-12). That means that the condition was inspected weekly by examiners 

and quarterly by MSHA inspectors. No examiner had ever noticed these conditions and no 

inspector had ever cited it. See Virginia Drilling Company, LLC, 2013 WL 1856608 (Mar. 2013) 

(holding that the fact that Respondent had not been cited in the past could be a mitigating 

circumstance). Even inspector Dempsey stated that if the area had always been the primary 

escapeway, his determination regarding the obviousness of the condition and Respondent’s 

negligence would be undermined. (Tr. I, 142-143). As a result, the evidence supports a finding 

that the condition was less than obvious. 

Furthermore, evidence suggests that Respondent made some efforts to correct the cited 

condition. Respondent had installed additional bolts and had installed a row of timbers in the 

area to provide support and narrow the entry. (Tr. I, 144, II, 37, 113-114). While these repairs 

36 FMSHRC Page 917
were incomplete, they showed that Respondent had made some effort to control the condition. 

An operator’s reasonable attempts, even if not totally adequate, to correct or prevent a violative 

condition constitute a mitigating factor with respect to negligence. Hidden Splendor, 2012 WL 

7659707 (Dec. 2013)(ALJ Manning). 

In light of these mitigating circumstances, Respondent’s actions are best characterized as 

showing “Moderate” rather than “High” negligence. 

The Secretary argued that there were no mitigating circumstances in this case. However, 

this argument was not compelling. The Secretary noted improper efforts to correct a condition 

did not constitute a mitigating circumstance. (Secretary’s Post-Hearing Brief at 28 citing 

Peabody Coal, 14 FMSHRC 1258, 1261-64 (Aug. 1992) and Jim Walter Resources, Inc., 19 

FMSHRC 480, 489 (Mar. 1997)). 

 As noted supra, the Administrative Law Judge found that Respondent efforts to correct 

the cited condition mitigated Respondent’s negligence. Respondent had seen that it developed 

the condition too wide and made some effort to eliminate the hazard. However, even if this were 

not a mitigating circumstance, the evidence would still support a finding of moderate negligence. 

The Secretary’s own witness, Inspector Dempsey, testified that if this area was a primary 

escapeway since 2008 that the condition was not obvious and the high negligence designation 

was undermined. As it was shown at hearing that the area had been an escapeway, all of the 

witnesses at hearing agreed that there was at least one mitigating circumstance. A high 

negligence designation is inappropriate where there are any mitigating circumstances. Therefore, 

a finding of moderate negligence is warranted. 

4. Penalty

Under the assessment regulations described in 30 CFR §100, the Secretary proposed a penalty of 

$63,000.00 for Citation No. 8154925. A recent Commission decision, Sec. v. Performance Coal 

Co., (Docket No. WEVA 2008-1825 (8/2/2013) reaffirmed that neither the ALJ nor the 

Commission is bound by the Secretary’ proposed penalties. (see also 30 U.S.C. §820(i) and 29 

C.F.R. §2700.30(b)). However, the Commission in Performance Coal 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)). The ALJ 

finds that a substantial deviation from the Secretary’s proposed assessment is warranted herein 

36 FMSHRC Page 918
and will evaluate the factors contained in 30 U.S.C. §820(i) to explain that deviation. Those 

factors are as follows: 

(1) The Operator’s history of previous violations – The evidence shows that Respondent 

had an extensive history of §75.202(a) violations.17 (GX-1)(GX-9). 

(2) The appropriateness of the penalty compared to the size of the Operator’s business – 

The parties have stipulated that Respondent is a large operator and Powellton is a large mine. 

(JX-1). 

(3) Whether the Operator was negligent – As previously shown, the operator exhibited 

moderate negligence, rather than the high negligence cited by the Secretary. 

(4) The effect on the Operator’s ability to remain in business – The parties have 

stipulated that the Orders at issue here would not affect Respondent’s ability to remain in 

business. (JX-1) 

(5) The gravity of the violation – As previously shown, this violation was reasonably 

likely to result in fatal injuries to 14 persons. 

 17 Following the conclusion of the hearing, Respondent filed a “Motion to Supplement 

the Record” to include evidence regarding the mine’s history. Specifically, Respondent wished to 

include evidence regarding Alpha Natural Resources purchase of the Elk Run Coal Company on 

July 1, 2011. (Respondent’s Post-Hearing Brief at 34). Respondent argued that it had changed 

ownership on July 1, 2011 and that considering evidence regarding history before that point 

punished Alpha Natural Resources for the wrongs committed by the previous owner, Massey 

Energy. The Secretary opposed this motion because this information was not submitted before 

the hearing concluded. (Secretary’s Opposition at 1-4). In the interest of fully addressing all of 

the issues at play in this case, the Administrative Law Judge considered Respondent’s proffer of 

evidence. 

However, that evidence did not change the ultimate determination of the operator’s 

history. Most importantly, the operator in this case, Elk Run Coal Company, has been in 

operation at this location since 2006. (Secretary’s Opposition at 5). While the controller has 

changed, the operator has remained the same. The relevant history is the Operator’s, not the 

controller’s. Therefore, Elk Run’s history is open to scrutiny; even if it had been controlled by 

Massey for some of that time and even if some management changes were made along with the 

change in controller. Further, the amount of time between the purchase of Elk Run and the 

instant citations was 22 months and 18 days. Therefore, the vast majority of Elk Run’s history 

dealt with the period during which it was controlled by Alpha Natural Resources (specifically, 

the period in contention here is roughly six week). Finally, the Administrative Law Judge is not 

bound by the Secretary’s proposed penalty; the assessed penalty is based on the totality of the 

factors at issue, of which history is only a small part.

36 FMSHRC Page 919
(6) The demonstrated good-faith of the person charged in attempting to achieve rapid 

compliance after notification of a violation – The parties stipulated that the condition was abated 

rapidly and in good faith. (JX-1) 

 In light of the Administrative Law Judge’s decision to modify the negligence from 

“High” to “Moderate” and to eliminate the unwarrantable failure designation, a reduction in the 

assessed penalty is appropriate. Therefore, Respondent is hereby ORDERED to pay a civil 

penalty in the amount of $45,000.00 with respect to this violation. 

Citation No. 8154926

I. ISSUE 

 With respect to Citation No. 8154926, the issues to be determined are whether 

Respondent’s alleged violation of the Act on April 18, 2013 was the result of high negligence, 

and the appropriate penalty for the violation. 

II. SUMMARY OF TESTIMONY 

The next Citation, No. 8154926 (GX-2), was issued 15 feet inby the No. 18 crosscut in 

the primary escapeway, around six crosscuts from the previous citation. (Tr. I, 58-59, 64-65, 70). 

There, Dempsey saw a piece of draw rock measuring 7.5 feet long, 2 feet wide, and 4 inches 

thick had gapped down over the lifeline. (Tr. I, 59, II, 41-42, 61). Peterson believed it was two to 

four inches thick. (Tr. II, 41). The dimensions cited were taken after it was pulled down, so it 

may have been longer or shorter. (Tr. II, 42).

The only thing preventing the rock from falling was a 1-inch thick, 6-inch wide fly board 

that was oriented across the entry and sagging under the weight of the rock. (Tr. I, 59-61, II, 42, 

61). About 3⁄4 of the rock was lying on the fly board. (Tr. II, 43). The 7 1⁄2 foot portion of the 

draw rock ran the same direction as the fly board. (Tr. I, 159). The draw rock extended over both 

sides of the board for a total of 18 inches to 2 feet. (Tr. I, 61-63, 159, II, 61). 

Dempsey did not believe the board was supporting the draw rock because it was not 

intended to hold up heavy items or support rock; it was used to hang ventilation curtains. (Tr. I, 

60, 63, 158-160). However, at that time it was keeping the rock from falling. (Tr. I, 159, 162). 

Peterson believed that the board was supporting the rock. (Tr. II, 43). He had to break the board 

to get the rock to fall. (Tr. II, 42). Harding testified that if he had encountered the condition 

during his examination he would have tried to pull it with a slate bar or dangered it off. (Tr. I, 

260). He also would have moved the lifeline. (Tr. I, 260). 

The fly board was bolted to the roof. (Tr. I, 63). Dempsey did not recall any part of the 

draw rock being bolted. (Tr. I, 161). Peterson testified that one bolt was through the draw rock 

attaching it to the top. (Tr. II, 41-43, 61). The bolt had a little bit of the rock. (Tr. II, 43).

Dempsey did not issue any other citations regarding the top or bolting. (Tr. I, 161-162). 

36 FMSHRC Page 920
Dempsey felt the cited condition was obvious and that a casual observer would see it. (Tr. 

I, 60, 259-260). Harding was not sure where the fly board was located. (Tr. I, 260). 

The hazard associated with the cited condition was crushing injury from rock fall if the 

board broke or the rock tilted. (Tr. I, 60). Dempsey believed that despite the board, these hazards 

could have happened at any time. (Tr. I, 63). Rock is 120 pounds per cubic inch. (Tr. I, 63-64). 

Here the draw rock was 5 cubic feet or roughly 600 pounds. (Tr. I, 64). 

Dempsey believed that it would take some time for the draw rock to separate from the 

roof and lay down gently on the board in a way that prevented a fall. (Tr. I, 66-68). Dempsey 

estimated the cited condition had existed before the last exam based on the way the rock was laid 

on the board, visual observation, and experience. (Tr. I, 66, 69, 162). If it had occurred all at 

once during the last shift it would have fallen to the side. (Tr. I, 68). Dempsey believed it had 

occurred more than 2 weeks earlier and would have been present during the escapeway drill. (Tr. 

I, 166-167). Harding testified that he did not see the rock during his examination. (Tr. I, 259). It 

could have developed from one day to the next. (Tr. I, 260-261). Peterson saw dust on the rock 

and concluded the rock was on the fly board for awhile. (Tr. I, II, 43-44). 

Miners were exposed because the drills and examinations passed through this area. (Tr. I, 

65-66). Also, Dempsey believed the lifeline passed directly under the draw rock. (Tr. I, 66). 

Peterson believed the rock was to the side of the lifeline. (Tr. I, 41). 

The cited condition was S&S because there was a violation of a mandatory safety 

standard, there was a hazard contributed to by this violation (a draw rock falling on an 

individual), and a reasonable likelihood of significant injury. (Tr. I, 68). 

The cited condition was reasonably likely to cause crushing injuries, which can be fatal. 

(Tr. I, 68-69). Eventually, the sagging rock would gap onto the board, cause the board to sag, and 

then break through or roll to the side. (Tr. I, 160-161). The rock had not yet reached the floor, but 

this did not make a fall unlikely. (Tr. I, 205-206). Only one person would have been injured if 

this particular rock fell, even if 14 miners were walking through the area. (Tr. I, 69). 

The citation was marked as “high” negligence because the area was examined by an 

agent of Respondent and the examiner should have a heightened awareness as a result of the roof 

falls in the intake entries and this area. (Tr. I, 69, 162, 164-165). Further the condition was 

obvious, extensive, and existed at the last examination. (Tr. I, 69, 166). Dempsey believed 

Harding should have sounded the roof and observed the gap. (Tr. I, 163). While he recognized 

that an examiner may miss a hazard without automatically being highly negligent, there is no 

“human error” allowance for one citation. (Tr. I, 165-166). There were no mitigating 

circumstances and Peterson did not mention any. (Tr. I, 69-70). 

Abatement took ten minutes and involved Peterson pulling down the rock (Tr. I, 71). 

36 FMSHRC Page 921
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The

Evidence That § 75.202(a) Was Violated.

On April 18, 2013, Inspector Dempsey issued a 104(a) Citation, No. 8154926, to 

Respondent. Section 8 of that Citation, Condition or Practice, reads as follows: 

The mine operator has failed to protected miners from loose draw rock in the 

primary escapeway for the #1 working section. 15’ inby the #18 xcut adjacent to 

#9 beltline a section of draw rock measuring 7.5’ long and 2’ wide and 4” in 

thickness is gapped down immediately over the primary escapeway lifeline. The 

only thing holding up this draw rock is 1” fly board which is sagging under the 

weght of the rock. 

Standard 75.202(a) was cited 74 times in the two years at mine 4609163 (74 to 

operator, 0 to contractor). 

(GX-2). 

The cited standard was, again, 30 C.F.R. § 75.202(a). 

The Secretary presented credible evidence that Respondent violated the cited standard, as 

described in the citation. (Tr. I, 59, II, 41-42, 61). In its brief, Respondent did not contest the 

validity of the violation. (Respondent’s Post-Hearing Brief at 22-23). In light of this fact, and the 

evidence presented, the Administrative Law Judge finds that this citation was valid. 

2. The Violation Was Reasonably Likely to Result in a Fatal Injury to One

Miner And Was Significant And Substantial In Nature

The Secretary presented credible evidence to support a finding that the cited condition 

was reasonably likely to result in fatal injury to a miner. (Tr. I, 68-69). Further, the Secretary 

supported the contention that the violation was S&S. (Tr. I, 68). 

In its brief, Respondent did not argue against the inspector’s gravity and S&S 

designations in Citation No. 8154926. The Administrative Law Judge finds that Respondent 

conceded that it violated the standard. In light of this fact, and the evidence presented, the 

Administrative Law Judge finds that the preponderance of the evidence supports the Secretary’s 

gravity and S&S designations. 

3. Respondent’s Conduct Did Not Display “High” Negligence

Respondent knew or should have known about the cited condition. There is no question 

that a piece of draw rock measuring 7.5 feet by 2 feet, by 2-4 inches was hanging directly over 

the lifeline. (Tr. I, 59, II, 41-42, 61). Further, there is no question that at the time of the 

inspection, the condition was obvious. (Tr. I, 60, 259-60). Inspector Dempsey credibly testified 

36 FMSHRC Page 922
that the cited condition was only supported by a fly board. (Tr. I, 59-61, II, 42, 61). He also 

credibly testified that the condition would have developed over time, perhaps over the course of 

two weeks. (Tr. I, 66-68, 166-167). Respondent’s agents, namely the airway examiners, were in 

this area as the condition developed. (Tr. I, 65-66). As a result, Respondent should have been 

aware that the condition was present and should have corrected it. Therefore, Respondent was 

negligent. 

While the Administrative Law Judge affirms the inspector’s finding that Respondent was 

negligent, the evidence does not support a finding that this negligence was high; there were 

mitigating circumstances. Specifically, Harding credibly testified that the condition was not 

obvious the day before during the airway examination. (Tr. I, 259). An Administrative Law 

Judge has a duty, if possible, to resolve conflicts in the testimony without determining that a 

witness committed perjury. See The American Coal Company, 2013 WL 6529525, FN 29 (Sept. 

2013)(ALJ Lewis). The most likely explanation is that the condition existed for roughly two 

weeks, the draw rock slowly separating from the roof and then settling onto the fly board. 

However, the condition did not become obvious until April 18, when the slab of rock gapped 

fully away from the top and settled where it was discovered by the Inspector. This explanation 

would conform both Dempsey’s and Harding’s observations. It would also accord with 

Harding’s testimony that he did not see the condition on April 17 and would also follow 

Dempsey’s testimony that the condition occurred gradually. 

Therefore, the Administrative Law Judge finds that the condition, while present, was not 

obvious during the April 17, 2013 examination. Therefore, a finding of high negligence is not 

appropriate. A finding of moderate negligence is best supported by the evidence. 

4. Penalty

The ALJ finds that a substantial deviation from the Secretary’s proposed assessment of 

$21,422.00 is warranted herein and will evaluate the factors contained in 30 U.S.C. § 820(i) to 

explain that deviation. Those factors are as follows: 

(1) The Operator’s history of previous violations – As discussed previously, Respondent 

had a long history of these types of conditions. 

(2) The appropriateness of the penalty compared to the size of the Operator’s business – 

As discussed previously, Respondent is a large operator and Roundbottom is a large mine. 

(3) Whether the Operator was negligent – As previously shown, the operator exhibited 

moderate negligence, rather than the high negligence cited by the Secretary. 

(4) The effect on the Operator’s ability to remain in business – The parties have 

stipulated that the Orders at issue here would not affect Respondent’s ability to remain in 

business. (JX-1) 

(5) The gravity of the violation – As previously shown, this violation was reasonably 

likely to result in fatal injuries to one person. 

36 FMSHRC Page 923
(6) The demonstrated good-faith of the person charged in attempting to achieve rapid 

compliance after notification of a violation – The parties stipulated that the condition was abated 

rapidly and in good faith. (JX-1). 

In light of the Administrative Law Judge’s decision to modify the negligence from 

“High” to “Moderate” and to eliminate the unwarrantable failure designation, a reduction in the 

assessed penalty is appropriate. Therefore, Respondent is hereby ORDERED to pay a civil 

penalty in the amount of $15,000.00 with respect to this violation. 

Order No. 8154928

I. ISSUE 

With respect to Order No. 8154928, the issues to be determined are whether 

Respondent’s alleged violation of the Act on April 18, 2013 was significant and substantial 

(“S&S”), whether it was reasonably likely to result in fatal injury to 14 miners, whether it was 

the result of high negligence and an unwarrantable failure, and the appropriate penalty for the 

violation. 

II. SUMMARY OF TESTIMONY

Dempsey reviewed Order No. 8154928 (GX-4). (Tr. I, 71). The cited condition was outby 

the overcast near the No. 8 head in the escapeway.18 (Tr. I, 72). This condition was found ten 

crosscuts from the condition observed in Citation No. 8154926. (Tr. I, 93). 

Before the Order was issued, Respondent had identified draw rock issues in this area. (Tr. 

I, 167-168). The order was issued because the operator failed to protect miners in the escapeway 

from draw rock. (Tr. I, 71-72). Specifically, wire mesh designed to control the draw rock was 

bowed, sagging, and separated under the weight of a large amount of rock and was failing to 

protect miners. (Tr. I, 72, 74-75, 80-81, 92, II, 45, 61). 

Mesh is commonly used in mines to control draw rock and bolt it to the roof. (Tr. I, 80, 

246). The mesh was inadequate because it was not pressing against the roof, the parts of the 

mesh did not overlap, and the installation used substitute material, like tie wires. (Tr. I, 174, 

178). Together, these conditions create a greater hazard. (Tr. I, 174-175). This particular mesh 

installation would not hold much more rock and it was already failing. (Tr. I, 184). The mesh 

was separating because it was loaded with rock. (Tr. I, 185, II, 45, 54). There was lots of draw 

rock of various sizes, some of which had fallen to the bottom. (Tr. I, 73, 80, 177, II, 45). As more 

rock collected, more wires would break and the structure would fail. (Tr. I, 185). It could have 

failed at any time. (Tr. I, 176-178). Peterson’s first thought upon seeing the mesh was that some 

corrective action needed to be taken. (Tr. II, 61-62).

18 An overcast is an area where one air current is allowed to pass over another. (Tr. I, 72). 

They are constructed of cinderblock and have a roof. (Tr. I, 72). There are usually some beams 

across it and some tin. (Tr. I, 72). The top is lower here. (Tr. I, 72). 

36 FMSHRC Page 924
Respondent’s witnesses believed the draw rock was controlled by the mesh and that 

miners passing under the mesh would be protected. (Tr. II, 46, 50, 62, 100-101). Saunders 

testified that it was time to change the mesh because the material had recently fallen, but the 

mesh was still protecting miners. (Tr. II, 106-107). They conceded the center of the entry was 

impassable. (Tr. II, 46).

If an operator has trouble with draw rock, wire mesh installation is a good method of 

control. (Tr. I, 102, 168). Mesh is put up to control localized draw rock, not to support main top. 

(Tr. II, 95). There are several ways to properly install mesh. (Tr. I, 82, 206-207). Operators have 

set up beams, installed false roofs with roof cribs, sealed the roof, and rebolted roofs. (Tr. I, 102, 

206). Every manufacturer of mesh will provide the product with an installation manual. (Tr. I, 

183-184). However, if a different method of installation provided the same level of protection as 

the manufacturer’s method, it is proper. (Tr. I, 184). Most of the time, mesh is installed by the 

roof bolter during the cycle. (Tr. I, 82, II, 14-15, 47, 96). If it is installed off the cycle, a machine 

can be brought in and the mesh can be hung with push plates.19 (Tr. I, 82-83, II, 47, 95). The 

mesh should have an overlap of one square of mesh, or four inches. (Tr. I, 83, 77, 184). Peterson 

testified that if the push plates could not be installed, the mesh was to be overlapped and tied 

together. (Tr. II, 47). 

Dempsey would not say that he would prefer that this area be scaled rather than meshed; 

that was not his role as inspector. (Tr. I, 175, 182). As long as the hazard is removed any method 

was fine. (Tr. I, 175-176). 

Dempsey did not believe the mesh in the cited location was properly installed. (Tr. I, 91, 

93, 99). However, he conceded that in some areas of the mine, mesh was installed properly. (Tr. 

I, 102). On the other hand, Peterson testified he was not sure if the mesh was properly installed, 

while his deposition testimony stated that it was improper. (Tr. II, 66-67). 

An open seam in between mesh panels was held together with a clevis. (Tr. I, 74, II, 67, 

102). Dempsey testified that clevises were not appropriate for connecting panels because it 

allows the mesh to sag and add additional draw rock and weight. (Tr. I, 89-90). Further, the 

edges of this seam did not overlap, there was a gap. (Tr. I, 75-76, 79, 83). Lack of overlap is 

improper installation because it does not support the draw rock. (Tr. I, 83-84, II, 15). There was 

some overlap in other areas, but not at the seam. (Tr. I, 77). There was no push plate near the 

seam. (Tr. I, 76). Saunders testified a clevis was used because a plate could not be used. (Tr. II, 

102). 

Clevises are generally used for light duty lifting work and are not rated for the load 

placed on it here. (Tr. I, 85, II, 103). Dempsey did not know how much weight these clevises 

could hold but they were small compared to the screen. (Tr. I, 169). They are used to lift 

something very small from an anchoring point. (Tr. I, 85). 

 19 Off cycle means that an area has been mined and the machinery has been moved to 

another place. (Tr. I, 83). It does not make sense to move the mining equipment back to install 

the mesh, so another machine is brought in to perform the work. (Tr. I, 83).

36 FMSHRC Page 925
Clevises were not included by the mesh manufacturer for installation. (Tr. I, 85). 

Saunders had been to seminars about the correct way to use mesh to control draw rock and read 

material on proper installation. (Tr. II, 116). However, he testified that mines do not necessarily 

follow the manufacturer guidelines. (Tr. II, 107). The cited location would be difficult to reach 

with a roof bolter, so the clevis would be easier. (Tr. II, 107-108). He stated that while using 

clevises was not the best installation method but it serviced the purpose. (Tr. II, 106). However, 

he conceded that the use of clevises was not recommended by the manufacturer. (Tr. II, 117). 

With respect to loads, there are barrel-type and screw-type clevises and they range in 

strength from 3/4 of a ton to 4 or 5 tons. (Tr. II, 103). A document provided by Respondent 

showed that a 3/4-inch clevis could hold a vertical load of 4 3/4 tons. (Tr. I, 179). However, the 

cited clevises were less than 3/4-inch so the load limits are irrelevant. (Tr. I, 179, 207). Dempsey 

believed that it was a 1/4 inch or 3/16 inch clevis as measured from the diameter of the pin. (Tr. 

I, 170-171). Harding had not measured the clevises, but had looked at them before and saw the 

stamp for their size, though not at this time. (Tr. II, 13-14). Peterson did not measure the clevises 

but he had used them before and they were 1/4-inch. (Tr. II, 67-68). 

Regardless of the size, a clevis can lift the greatest load when vertical. (Tr. I, 86). 

Changing the angle of the hoist requires a load reduction. (Tr. I, 86, 103-104). The clevis here 

was on its side, meaning that the load would have to be reduced from the manufacturer’s direct 

vertical load. (Tr. I, 86-87, 179). Respondent’s document listing the vertical load at 4 3/4 tons for 

a 3/4-inch clevis did not include the side loading application limits. (Tr. I, 179-180, 207-208). 

Peterson testified that he had seen a document that included the lateral load, but he did not recall 

the amount at hearing. (Tr. II, 68). Saunders testified that the strength of the clevis is six times 

the working load and that when the application is lateral there is a loss of 50 percent of capacity. 

(Tr. II, 104). He testified that this would still be several tons of strength. (Tr. II, 104). The cited 

clevises had a capacity of around 6,000 pounds, maybe slightly less. (Tr. II, 105). Harding did 

not know the lateral load for the clevises. (Tr. II, 14). 

In addition, Saunders testified the mesh itself was between 1/8 and 1/4 inch of steel. (Tr. 

II, 105). The strength of the carbon steel the mesh is made of is 65,000 PSI. (Tr. II, 105-106). 

Each strand of steel would hold around 1,000 pounds, so the clevis was stronger. (Tr. II, 106). 

Dempsey testified that each clevis is designed with a different strength of steel and 

construction can change the load it can hold. (Tr. I, 180). Peterson did not know what the 

clevises were made of. (Tr. II, 67). 

In another spot, a clevis was not even suspended or anchored; it was just being used as a 

“glorified” tie wire. (Tr. I, 88-89). When a clevis is used, it is anchored to something and then a 

load is suspended from it. (Tr. I, 88). The clevis had no “load limit” when not anchored because 

it was used improperly. (Tr. I, 89). 

There were no other locations in the mine where the mesh was connected with clevises. 

(Tr. I, 82, 169). There was no evidence that clevises were broken. (Tr. I, 171). Dempsey did not 

count the clevises in this area. (Tr. I, 169). 

36 FMSHRC Page 926
In several places the open seams in the mesh were secured with tie wire, which would not 

support the load. (Tr. I, 72, 76-78, 90, 172-173, II, 62). In these locations there was no overlap or 

bearing plate. (Tr. I, 76, II, 62). The seam opened because the installation could not hold the 

rock. (Tr. I, 90). Rock fell down the seam onto the bottom. (Tr. I, 78-79, 80, 173). Draw rock 

falling through the seam would be no different than if it fell from the ceiling. (Tr. I, 173). 

Dempsey observed mesh in other locations at the same mine but none were connected with tie 

wire and none had non-overlapping seams. (Tr. I, 81-82). 

Harding and Peterson conceded that panels were held together with tie wire, even during 

the examination. (Tr. II, 13, 54). Peterson testified that it was proper to use tie wires to prevent a 

gap given the amount of rock present. (Tr. II, 64, 66). Peterson reviewed his sworn, signed 

deposition testimony on page 69, line 15 (GX-11). (Tr. II, 63). In that testimony, Peterson stated 

that a particular tie wire was not doing its job because the weight of the rock had crushed it. (Tr. 

II, 63-64). He also stated that it was improper installation to have the seams. (Tr. II, 64). 

In another area, the mesh was tied to a roof bolt plate with a tie wire rather than rebolts. 

(Tr. I, 78, II, 53-54, 62). Dempsey did not recall if he saw tie wires on plates in other places. (Tr. 

I, 81). There were no other locations in the mine (or in other mines) where the mesh panels were 

connected to the roof with tie wires. (Tr. I, 82, 90-91). At first, Harding testified that he did not 

see tie wires attached to the top, but later conceded that mesh was connected to the top during his 

examination. (Tr. II, 13)(GX-6, p. 4). Peterson testified that this installation was used because the 

roof bolt’s thread had broken and therefore would not accept a plate. (Tr. II, 53-54). 

Tie wire is generally used to hold roof bolts in place and hold other materials together, 

like gluts or wedges. (Tr. I, 84, II, 65). Tie wire was not supplied by the mesh manufacturer for 

installation. (Tr. I, 84, II, 65). Manufacturers provide information about proper installation 

because they have liability. (Tr. I, 84-85). The tie wire here was old, a little rusty, and broken 

apart. (Tr. I, 84). The mesh itself had some rust on the surface. (Tr. I, 91). Peterson testified that 

the purpose of tie wire is to support areas where mesh overlaps and no push plate can be 

installed. (Tr. II, 52-53). The ties keep the edges from rolling back where they could hit someone 

in the face. (Tr. II, 53). 

If the clevises and tie wires were used as they were here, but the seams had not burst, 

there would still be a violation. (Tr. I, 98-99). The installation ensured that the roof would fail. 

(Tr. I, 99). This was like having an unsupported roof; the rock was uncontrolled. (Tr. I, 99). 

Saunders conceded that this was not proper installation and that clevises and tie wires were not 

supposed to be used. (Tr. II, 117). 

Rather than clevises or tie wires, push plates should have been placed where they would 

support the screen and hold it against the roof. (Tr. I, 183). These kinds of plates are installed 

over the bolts that had extended threads. (Tr. I, 183). In fact, some bearing plates were present in 

the cited area. (Tr. I, 77, 82, 172). Peterson and Saunders testified that there were seven or eight 

push plates in the cited mesh. (Tr. II, 48, 90, 96). Neither Dempsey nor Harding was sure of the 

number. (Tr. I, 169, 189, 258). However, there were no push plates in the center of the entry. (Tr. 

I, 171-172, II, 49). Respondent’s witnesses testified that there was no plate because the threads 

on the end of the bolt had broken off. (Tr. I, 254, II 102). Peterson did not recall seeing push 

36 FMSHRC Page 927
plates directly over the lifeline but believed that the area was supported. (Tr. II, 48). Saunders 

believed most of the plates were along the life line. (Tr. II, 90). However, he arrived at the 

overcast after they cut down the mesh. (Tr. II, 89-90, 94). 

Harding and Saunders testified that the push plates were rated for 6,000 pounds 

(Dempsey was not sure). (Tr. I, 171, 252, II, 95-96). Dempsey did not see any evidence that any 

push plates had loosened, failed, or stopped performing. (Tr. I, 171). But, because of the cited 

condition, he could not get near the push plates to observe closely. (Tr. I, 171-172). Peterson did 

not see any plates that were stressed or over-weighed. (Tr. II, 56-57). 

In addition to using the proper materials, the mesh was supposed to be installed tight to 

the roof to prevent the air from cutting more draw rock. (Tr. I, 174, 178). Here Dempsey 

believed the mesh was not tight, allowing more rock to fall and add unsupportable weight to the 

mesh. (Tr. I, 174, 178). However, Respondent’s witnesses testified that the mesh above the 

lifeline was still tight to the roof and that only the area opposite the lifeline was loose. (Tr. I, 

254-255, 258, II, 45-46, 100). 

Dempsey did not know how much rock was in the mesh. (Tr. I, 179-180). According to 

Peterson, when they cut the mesh down, the loose rock was about four feet in diameter, most of 

it small. (Tr. II, 55). Based on that measurement, Dempsey determined there was 1,507 pounds 

of rock. (Tr. I, 208-210). Peterson testified that the amount of rock in the mesh would be enough 

to fill a wheel barrow or a little bit more. (Tr. II, 55). He believed it weighed 300 rather than 

1,500 pounds. (Tr. II, 55-56). He was not concerned that the amount of rock would cause a 

failure of the mesh. (Tr. II, 57-58). The wire mesh is not designed to hold up the mound, it is just 

to collect the loose material that falls off to prevent it from reaching the bottom. (Tr. II, 57-58). 

Dempsey believed the hazard associated with this condition was falling draw rock. (Tr. I, 

92). If the condition were allowed to continue, other portions of the roof would deteriorate, fall, 

and break through the seams in the mesh. (Tr. I, 92). Ultimately the entry where miners work and 

travel would fail. (Tr. I, 92). He did not believe that the fact that the rock was caught and 

suspended indicated that miners were protected from falling rock. (Tr. I, 181). In fact, the mesh 

made the area more dangerous as it was gathering rocks. (Tr. I, 92, 168). The screen was being 

loaded with more stone every day and all the weight would fall at once when the mesh failed. 

(Tr. I, 168, 182). Further, if the mesh were gone, individual rocks could be spotted and pulled 

down; the gob of rocks prevented observation and understanding of the roof. (Tr. I, 181-182). 

However, Dempsey conceded that without the mesh, each piece of rock would have fallen to the 

floor and could have hit a mine (if not scaled). (Tr. I, 168-169).

Peterson testified that the only hazard was where the mesh had separated because 

someone could walk into it. (Tr. II, 58). If Peterson had been the airway examiner he would have 

recommended that someone tighten the gap. (Tr. II, 58). He would have also recommended 

cutting the mesh and letting some rock fall out and then resetting. (Tr. II, 58-59). 

According to Dempsey, the cited condition existed for “quite a while” because of the 

deterioration that had taken place. (Tr. I, 94, 187). The metal had oxidized and time would be 

needed for the cited rock to accumulate. (Tr. I, 94). The condition had existed since the mesh 

36 FMSHRC Page 928
was installed, which was more than a week ago and probably before November 2012. (Tr. I, 95, 

245-247). It was possible that there was a time when pieces falling did not weigh enough to 

separate the seam. (Tr. I, 181). It would be hard to tell when the different pieces of rock had 

fallen. (Tr. I, 180-181). 

The day before the instant citation, Harding traveled from the surface to the section. (Tr. 

I, 188-189). At the time of issuance, Harding stated that, “it was not like that yesterday.” (Tr. I, 

178, 187, 251). Dempsey replied that he found it hard to believe that the sagging mesh had not 

been present the day before. (Tr. I, 187-189). Harding testified that on April 17th the wire mesh 

was not sagging and that there was maybe 50 pounds of rock in the mesh. (Tr. I, 244-245, 247-

248, 253, II 12, 18). Further, the mesh was not separated from the seam and there was no draw 

rock under the lifeline or mesh. (Tr. I, 248-249, 253). He believed the rock was controlled. (Tr. I, 

248). On the day of the citation, Harding and Peterson believed most of the rock in the mesh was 

fresh. (Tr. I, 255-256, II, 51, 55). Old rocks that are exposed to the air appear lighter, dry, and 

dusty while fresh rocks are dark and wet. (Tr. I, 255-256, II, 51-52, 86-87). The rock here was 

dark gray and wet. (Tr. II, 52, 100-101). The cited material would have struck Harding in the 

nose and neck, meaning it would be hard for an examiner to walk under it. (Tr. I, 188-189, 245). 

If he had seen this condition, he testified that he would have remedied it but it was not present. 

(Tr. I, 245, 249, 254). 

This condition was in the primary escapeway where the fire drill occurred. (Tr. I, 93). 

There must be six feet of travel area to accommodate a lifeline, in case a disabled miner would 

need to be transported to the surface on a stretcher. (Tr. I, 94). The lifelines passed directly under 

the mesh panels. (Tr. I, 77, 94). If the condition of the mesh existed on the 15th or 16th, Dempsey 

would have expected one of the men to report the condition. (Tr. I, 186). However, Dempsey did 

not recall talking to any of the miners. (Tr. I, 187). Further, a weekly examiner would have 

traveled in this area on the 17th. (Tr. I, 93-94). 

The citation was marked S&S because there was a violation of a mandatory safety 

standard, the violation contributed to the hazard of draw rock, and there was a reasonable 

likelihood that this hazard would result in a substantial injury to a miner. (Tr. I, 95). 

This citation was marked “fatal” because draw rock can crush a person. (Tr. I, 96). The 

mesh had not yet completely failed, but this did not make a fall unlikely. (Tr. I, 206). Also, the 

14 miners in the fire drill would be affected as they all could have been killed. (Tr. I, 96, 182). 

The condition was cited for “high” negligence because it should have been observed and 

repaired long before the inspection. (Tr. I, 96). Someone recognized that there was a problem, 

but the mesh was installed incorrectly. (Tr. I, 96-97). Respondent also knew that the mesh was 

held together with tie wire. (Tr. I, 96). Further, this area was examined and supervisors passed 

through. (Tr. I, 96). Dempsey did not believe there were any mitigation circumstances because 

the installation was improper, it was set up to hurt people rather than help. (Tr. I, 97). Further, 

when a supervisor directs a miner to do work, he is required to examine the work and ensure that 

it is done correctly and protects health and safety. (Tr. I, 99). 

36 FMSHRC Page 929
Dempsey did not see any mitigation and Respondent did not bring any up. (Tr. I, 97). In 

fact, Dempsey stated that Peterson agreed with the citation. (Tr. I, 100-101). The mesh was not a 

mitigating factor because it made matters worse rather than better. (Tr. I, 183). 

Dempsey believed this conduct was an unwarrantable failure. (Tr. I, 72). A UWF can be 

intentional or be the result of indifference. (Tr. I, 97). The cited condition was obvious, 

extensive, had existed for a while, and it had been examined by Respondent’s agent. (Tr. I, 97-

98). The cited condition was plainly visible as it hung down below the edge of the overcast. (Tr. 

I, 72-73). The rock was hanging and suspended from the mesh. (Tr. I, 73). Any observer (trained 

or not) should have seen this condition. (Tr. I, 91). Dempsey described the situation as a “bomb” 

that would fall on someone and he did not want to walk under it. (Tr. I, 91-92, 98). 

As a result of this condition, a D-Order was issued, pulling the miners outby the 9-head. 

(Tr. I, 249-250). The order was issued at 11:00 and was terminated at 1:10. (Tr. I, 101). It took 

15 miners to make the repairs. (Tr. I, 101). The condition was abated when Respondent took 

down the wire mesh, cleaned the draw rock, and set two rows of roof jacks in the area. (Tr. I, 

101, 251, II, 69). Respondent cut off the mesh at the corner with a grinder, let the rocks fall, 

raked them off the mesh, and threw everything away. (Tr. I, 257, II, 49). Peterson testified that if 

there had been a lot of rock they would not have used a grinder because it would have been 

hazardous. (Tr. II, 59). Dempsey did not observe or direct the repairs. (Tr. I, 101-102, 179). 

III. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The 

Evidence That § 75.202(a) Was Violated.

On April 18, 2013 Inspector Dempsey issued a 104(d)(1) Order, No. 8154928, to 

Respondent. Section 8 of that Order, Condition or Practice, reads as follows: 

The operator has failed to protect miners who travel the intake/primary escapeway 

from the fall of roof material (draw rock). The primary escapeway is deemed 

unsafe to travel in the area immediately outby the overcast near #8 head. Wire 

mesh has been used to control draw rock. This wire mesh is bowed and separated 

under the applied load. Several points were secured w/simple tired wire which 

will not support the applied load. The operator has engaged in aggravated conduct 

constituting more than ordinary negligence. The violation is an unwarrantable 

failure to comply with a mandatory standard. 

Standard 75.202(a) was cited 75 times in the two years at mine 4609163 (75 to 

operator, 0 to contractor). The violation is an unwarrantable failure to comply 

with a mandatory standard. 

(GX-4). 

 The cited standard was, again, 30 C.F.R. § 75.202(a). 

36 FMSHRC Page 930
The Secretary presented credible evidence that Respondent violated the cited standard, as 

described in the citation. (Tr. I, 71-75, 80-81, 92, II, 45, 61). In its brief, Respondent did not 

contest the validity of this Order. (Respondent’s Post-Hearing Brief at 24-26). In light of this 

fact, and the evidence presented, the Administrative Law Judge finds that this citation was valid. 

2. The Violation Was Significant And Substantial In Nature And Reasonably 

Likely to Result in Fatal Injuries to 14 Persons

Inspector Dempsey marked the gravity of the cited danger in Order No. 8154928 

“Reasonably Likely” to result in “Fatal” injury to 14 person. (GX-9). These determinations are 

supported by a preponderance of the evidence. 

The event against which the instant standard, 30 C.F.R. § 75.202(a), was directed, as 

stated in the standard, are “hazards related to falls of the roof, face or ribs and coal or rock 

bursts.” Those hazards include being struck by falling rock as well as walking into the mesh used 

to control the draw rock. (Tr. I, 92, II, 58). In the instant location, Inspector Dempsey credibly 

testified that the wire mesh was improperly installed, creating the possibility that the rocks 

collected therein would fall on miners. (Tr. I, 72, 74-75, 80-81, 92, 184, II, 45, 61). The mesh 

was improperly installed because it used devices other than those provided by the manufacturer, 

namely tie wires and clevises. (Tr. I, 72, 74, 76-78, 90, 172-713 II, 62, 67, 102). Tie wire was 

also used, instead of the recommended push plates, to attach the mesh to the top. (Tr. I, 78, II, 

53-54, 62). Also, the pieces of mesh were not overlapped, as is best practice. (Tr. I, 75-76, 79, 

81-84, II, 15). Finally, the installation did not keep the mesh close tight to the roof as required. 

(Tr. I, 174, 178). As a result, rock filled the mesh, caused it to bow out and then split. (Tr. I, 185, 

II, 45, 54). This allowed some rock to fall and created the likelihood that the entire mesh 

structure would fall. (Tr. I, 185). As discussed supra, rock falls are inherently dangerous. 

Therefore, a preponderance of the evidence supports the Inspector’s finding that a fatal injury 

was reasonably likely. 

For the same reasons as discussed with respect to Citation No. 8154925 supra, this was 

an area miners worked and traveled, especially during fire drills or emergencies. Therefore, a 

preponderance of the evidence supports the Inspector’s finding that 14 miners would be affected 

in the event of a massive roof fall. 

Respondent provided several arguments asserting that an accident was unlikely. As 

Respondent addressed those arguments as they related to the S&S designation, they will be 

discussed infra. 

Order No. 8154928 was marked by Inspector Dempsey as S&S. (GX-4). It has already 

been established that the first element of the Mathies S&S analysis, the underlying violation of a 

mandatory safety standard, has been established with respect to this order. As discussed supra, 

Respondent violated 30 C.F.R. § 75.202(a). 

The second element of Mathies, a discrete safety hazard – that is a measure of danger to 

safety – contributed to by the violation, is also met. The preponderance of the evidence shows 

that the cited condition, an improperly installed wire mesh, contributed to the hazard of a roof 

36 FMSHRC Page 931
fall. The wire mesh suspended several pieces of rock above the escapeway floor and, upon 

failure, would have allowed hundreds of pounds of rocks to fall. (Tr. I, 185, 208-210, II, 55-56). 

The evidence suggests that there were several safer ways to control draw rock in the area. 

Inspector Dempsey credibly testified that, if installed correctly, the mesh would have prevented a 

rock fall. (Tr. I, 102, 168). Further, there were several other methods of roof control that would 

have made a roof fall very unlikely. (Tr. I, 175-176). Therefore, the improperly installed mesh 

made a roof fall more likely and contributed to a hazard. 

Respondent argued that this condition did not contribute to any hazard. However, this 

argument is not persuasive. Respondent argued that the mesh did not contribute to a safety 

hazard, but was installed to prevent and remedy a safety hazard related to falling material and 

tripping hazards. (Respondent’s Post-Hearing Brief at 26). It argued that the mesh prevented 

material from falling to the ground. (Id.). There is no question that properly installed mesh will 

prevent a hazard, rather than contribute to one. (Tr. I, 102, 168). However, Inspector Dempsey 

credibly testified that the condition of the cited mesh actually increased danger. Rather than 

allowing Respondent to see and then scale draw rock (as it would if there was no mesh), the 

mesh obscured visibility. (Tr. I, 92, 168, 182). And rather than hold the rock (as it would if the 

mesh were improperly installed), the mesh created a “time bomb” that would eventually go off 

when the weight of the mesh proved too great to hold. (Tr. I, 91, 92, 98). Therefore, it is possible 

that the condition was less safe than if Respondent had completely ignored the area. Rather than 

smaller pieces of rock falling occasionally (still a considerable hazard), the mesh created the 

probability of a large collapse. Therefore, the Administrative Law Judge finds that the second 

prong of Mathies is met. 

The third element of the Mathies test – a reasonable likelihood that the hazard contributed 

to will result in an injury – is also met. In the event of a split or collapse in the mesh, there is no 

question that a massive rock fall would occur. All the witnesses agree that there was rock in the 

mesh and that it posed a danger. (Tr. I, 72, 74-75, 80-81, 92, II, 45, 61). I credit the testimony of 

Inspector Dempsey that over 1,500 pounds of material was caught in the mesh. (Tr. I, 185, 208-

210). Further, more might have collected in the mesh before the ultimate failure. For the reasons 

discussed supra, I find that miners were exposed to this condition. As a result, I find that in the 

event that the mesh failed, injuries would be reasonably likely. 

Respondent argued that this condition did not contribute to any hazard. However, this 

argument is not persuasive. Respondent cited to Judge Zielinski’s decision in Ohio County Coal 

Co., for the proposition that in order to find an injury causing event was likely, both the 

likelihood of both a miner being in the area and a roof fall occurring at the same time must be 

considered. 31 FMSHRC 1486, 1491 (2009)(ALJ Zielinksi). Judge Zielinski’s decision was 

issued before the Commission clarified the Mathies test in Musser Engineering, Inc., and PBS 

Coal Inc., supra. The issue is no longer whether there could simultaneously be a roof fall and a 

miner in the area. Instead, the roof fall is presumed to happen and the question is whether anyone 

was exposed. For the reasons discussed supra, the Administrative Law Judge found that miners 

regularly worked and traveled in this area, including miners on regular fire drills or in an 

emergency. Therefore, there was exposure and, if there was a roof fall, injuries would be 

reasonably likely. 

36 FMSHRC Page 932
The fourth element - a reasonable likelihood that the injury in question will be of a 

reasonably serious nature – is also met. As discussed with respect to Citation No. 8154925, 

injuries resulting from a rock fall would be serious. Therefore, the cited condition was S&S. 

3. Respondent’s Conduct Displayed “High” Negligence And Was The Result Of 

An Unwarrantable Failure To Comply With the Standard.

In the citation at issue, Inspector Dempsey found that the operator’s conduct was highly 

negligent in character. (GX-4). The preponderance of the evidence supports this finding. 

With respect to knowledge, the evidence shows that Respondent knew, or should have 

known, about the cited condition. Inspector Dempsey credibly testified that the wire mesh had 

been improperly constructed since it was first installed. (Tr. I, 91, 93, 99). The evidence is not 

clear on when the mesh was installed, but it was at least several months before the instant 

citations. (Tr. I, 95, 245-247). Therefore, Respondent’s examiners had been traveling through the 

area weekly and should have noticed that the installation was inadequate and taken steps to 

correct the problem. 

Further, there were no mitigating circumstances. Inspector Dempsey testified that he did 

not see any mitigating factors and that Respondent did not offer any at issuance. (Tr. I, 97). 

According to Dempsey, Peterson agreed with the issuance of the order. (Tr. I, 100-101). The 

Administrative Law Judge finds that Respondent should have known about the cited condition 

and did nothing that would constitute a mitigating factor of that negligence. 

Respondent presented several putative mitigating factors with respect to this order. 

However, none of those arguments were compelling. 

First, Respondent argued that the area had been previously identified as being susceptible 

to draw rock and it had installed steel mesh to alleviate the hazard. (Respondent’s Post-Hearing 

Brief at 25). Further, Respondent argued that the mesh was achieving the goal of preventing 

draw rock from falling to the ground. (Id. at 26). While identifying areas that experience draw 

rock is positive, Respondent’s actions here were not a mitigating circumstance. Inspector 

Dempsey testified that the mesh actually made conditions in the area worse and therefore, was 

not a mitigating circumstance. (Tr. I, 183). As discussed supra, the inspector credibly testified 

that the nature of the installation made the condition a “time bomb” rather than a protective 

measure. (Tr. I, 191). Therefore, the installation of the mesh was not a mitigating factor. 

Next, Respondent argued that it did not know and had no way to know that the condition 

was present. It argued that the mesh panels had been in place for a year and that no one 

(including MSHA inspectors) indicated that the installation method was hazardous. 

(Respondent’s Post-Hearing Brief at 25). I credit the testimony of Inspector Dempsey who stated 

that cited condition was obvious. (Tr. I, 97-98). Unlike with respect to Citation No. 8154925, 

Inspector Dempsey did not qualify his determination of obviousness based on how often the area 

was examined. I find that the condition, mesh panels installed directly over the head of the 

examiner that were loose from the top and held together with tie wires and clevises would have 

been obvious. This is not a mitigating circumstance. 

36 FMSHRC Page 933
 

Next, Respondent argued that the mesh over the lifeline was secured to the roof with push 

plates (which were rated to hold 6,000 pounds each). (Respondent’s Post-Hearing Brief at 25). 

The Administrative Law Judge does not believe the evidence would support such a finding. The 

only witness who stated that there were push plates life line was Saunders. (Tr. II, 90). However, 

Saunders arrived at the overcast after the mesh had been cut down. (Tr. II, 89-90, 94). He did not 

see the condition as it appeared when the order was issued. Further, Peterson, Respondent’s only 

witness who was at the overcast when the order was issued, testified that he did not recall seeing 

push plates over the lifeline. (Tr. II, 48). The Administrative Law Judge credits this testimony, as 

well as the testimony of Inspector Dempsey who stated that the cited mesh was not supporting 

the top. (Tr. I, 71-75, 80-81, 92, II, 45, 61). This is not a mitigating circumstance. 

Next, Respondent argued that push plates were used on all roof bolts that would accept 

them and that clevises were used when they would not. (Respondent’s Post-Hearing Brief at 25). 

It also noted that these clevises were designed to hold nearly the same weight as the push plates. 

(Id.). The exact number of push plates used was unclear. Peterson and Saunders testified that 

there was seven or eight. (Tr. II, 48, 90, 96). Neither Dempsey nor Harding was sure. (Tr. I, 169, 

189, 258). It is uncontested that there were no plates in the center of the entry. (Tr. I, 171-172, II, 

49). Further, it is unclear how many clevises were used and how much weight they could hold. 

However, the Administrative Law Judge is certain that the clevises did not hold as much weight 

as the push plates. The statistics used by Respondent to prove the strength of the clevises all dealt 

with larger clevises being used properly as hoisting devices. (Tr. I, 179-180, II, 67-68). The 

clevises used here were much smaller and were being used as clamps or tie wires. (Tr. I, 88-89, 

II, 67-68). While it is unclear how much the clevises could hold, it was clearly less than proposed 

by Respondent. 

Regardless of the number of plates or the strength of the clevises, it was clear from the 

result support was insufficient. In essence, the proof is in the pudding. Respondent’s installation 

had failed to control the draw rock. Even Peterson stated, upon seeing the mesh when the order 

was issued, that something needed to be done. (Tr. I, 100-101, II 61-62). If the clevises and the 

push plates had been sufficient to control the roof, the mesh would not have been leaking rock 

and been on the verge of collapse. This is not a mitigating circumstance. 

Next, Respondent argued that the tie wire was used for “cosmetic purposes” to keep the 

ends of the mesh panel from rolling down or becoming a hazard to walk into. (Respondent’s 

Post-Hearing Brief at 25). The Administrative Law Judge credits the testimony of Inspector 

Dempsey that there was at least one seam on the mesh that was held together by tie wire. (Tr. 72, 

76-78, 90, 172-173, II, 62). The photographic evidence supports this testimony. (GX-6, 

photographs 2, 3, & 5). Far from being cosmetic, this installation using materials not provided by 

the manufacturer was one of the reasons the roof conditions were so hazardous. This is not a 

mitigating circumstance. 

Finally, Respondent argued that most of the rock was fresh and the seam and split apart 

since the previous examination. (Respondent’s Post-Hearing Brief at 26). The Administrative 

Law Judge credits the testimony of Inspector Dempsey that the rock had been present for some 

time. (Tr. I, 187-189). However, even if that were not the case, this would still not constitute a 

36 FMSHRC Page 934
mitigating circumstance. The roof was not controlled because the mesh was improperly installed. 

Even before the rock began to collect in the mesh, the panels were held together with tie wires 

and clevises in a way that prevented the mesh from maintaining its position close to the top. 

When the rock fell, it made this improper installation more obvious, but the rock itself was not 

the cited condition. The rock was the result of the improper installation, the danger that the mesh 

should have prevented. This condition would have been a violation even if no rock had fallen. 

Even if the rock had fallen just five minutes before the order was issued, the improper 

installation had occurred months earlier. Therefore, this is not a mitigating circumstance. 

In light of the foregoing, the Administrative Law Judge affirms the inspector’s finding of 

“high negligence.” 

The Commission has recognized the close relationship between a finding of 

unwarrantable failure and a finding of high negligence. San Juan Coal Co., 29 FMSHRC 125, 

139 (Mar. 2007) (remanded because a finding of high negligence without a corresponding 

finding of unwarrantable failure was “seemingly at odds.”) see also Consolidation Coal 

Company, 22 FMSHRC 340, 353 (2000) (holding that if there is mitigation, an unwarrantable 

failure finding is inappropriate). Emery Mining Corp., defines an unwarrantable failure, as 

“aggravated conduct constituting more than ordinary negligence.” Emery Mining Corp., 9 

FMSHRC 1997, 2002 (Dec. 1987). Such conduct may be characterized as reckless disregard, 

intentional misconduct, indifference, or serious lack of reasonable care. Id. at 2004; see also 

Buck Creek Coal, 52 F.3d 133, 135-136 (7th Cir. 1995). The Commission formulated a six factor 

test to determine aggravating conduct. IO Coal Co., Inc., 31 FMSHRC 1346, 1350-1351 (Dec. 

2009). While each factor does not need to be present in order to find unwarrantable failure, all 

six factors must be considered. The Administrative Law Judge will consider each of those factors 

in turn: 

1. Extent Of The Violative Condition 

This particular condition was a large piece of mesh, around 240 square feet, that was 

improperly installed. It covered the entire width of the entry. Therefore, it was extensive. 

2. The Length of Time of the Violation Existed 

While the exact date of the installation is not clear from the record, there is no question 

that it was there for several months. (Tr. I, 95, 245-247). Inspector Dempsey credibly testified 

that the mesh was rusty, indicating that installation was not recent. (Tr. I, 91). Therefore, the 

cited condition had existed for quite a while. 

3. Whether the violation is obvious or poses a high degree of danger 

The violation at issue here was obvious and posed a considerable danger. As discussed 

supra, this condition was reasonably likely to result in fatal injuries to 14 miners. I credit the 

testimony of the inspector that the condition was obvious and should have been observed by a 

trained or untrained observer. (Tr. I, 91-92). 

36 FMSHRC Page 935
4. Whether the operator had been placed on notice that greater 

efforts were necessary for compliance or that this condition was an 

issue. 

The evidence suggests that Respondent had problems with roof falls in this mine. (Tr. I, 

42, 202-203). In fact, several months after these citations were issued a roof fall occurred in the 

cited entry. (Tr. I, 107). Further, Respondent had an extensive history of § 75.202(a) violations. 

Therefore, Respondent had meaningful notice that roof conditions were a serious problem in the 

mine. Respondent should have taken action to correct this condition. 

5. The operator’s efforts in abating the violative condition 

The parties stipulated that the condition was abated quickly and in good faith. (JX-1). 

6. Operator’s knowledge of the existence of the violation 

 “It is well-settled that an operator’s knowledge may be established, and a finding of 

unwarrantable failure supported, where an operator reasonably should have known of a violative 

condition.” IO Coal Co., 31 FMSHRC at 1356-1357 (citing Emery, 9 FMSHRC at 2002-2004). 

A supervisor’s knowledge and involvement is an important factor in an unwarrantable failure 

determination. See Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001) citing (REB 

Enterprises, Inc., 20 FMSHRC 203, 224 (Mar. 1998) and Secretary of Labor v. Roy Glenn, 6 

FMSHRC 1583, 1587 (July 1984). As discussed above, the preponderance of the evidence shows 

that Respondent should have known of the condition. Harding, and other examiners, traveled 

through this area and actively searched for violative conditions. These examiners should have 

seen the condition and corrected it. 

 In light of the size of the violation, the length of time it had, the obviousness and high 

degree of danger posed by the condition, the notice Respondent received regarding the need to 

control the top, Respondent’s knowledge of the cited condition, and the fact that Respondent’s 

actions are best characterized as “high” negligence, the Administrative Law Judge finds that this 

violation was an unwarrantable failure on the part of the operator. 

4. Penalty

In light of the fact that the Administrative Law Judge has affirmed the Secretary’s 

citation as issued, it is appropriate to affirm the assessed penalty as issued. Therefore, 

Respondent is hereby ORDERED to pay a civil penalty in the amount of $70,000.00 with 

respect to this violation. 

Citation No. 8154927

I. ISSUE 

 With respect to Citation No. 8154927, the issues to be determined are whether 

Respondent’s alleged actions on April 18, 2013 were a violation of §75.364(a)(1) and, if so, 

36 FMSHRC Page 936
whether that violation was significant and substantial (“S&S”), whether it was reasonably likely 

to result in fatal injuries to 14 miners, whether it was the result of high negligence and an 

unwarrantable failure, and the appropriate penalty for the violation. 

II. SUMMARY OF TESTIMONY 

Citation No. 8154927 (GX-3) was issued because Respondent failed to conduct an 

adequate weekly examination of the intake/primary escapeway. (Tr. I, 102-103, 268). 

Specifically, between the No. 26 crosscut to the overcast near the No. 8 belt, three obvious and 

extensive conditions were found. (Tr. I, 103, 190). There was only about 1,200 feet, from the 

first citation to the order. (Tr. I, 190). However, Dempsey already considered that this have been 

an inadequate examination after the second condition.20 (Tr. I, 195). 

Weekly examinations are conducted to ensure that hazardous conditions are identified 

and corrected. (Tr. I, 104). Examiners must look for the standards in the examination books as 

well as roof and rib conditions. (Tr. I, 104-106, 134, 219-220, II, 79). Examiners must be 

familiar with the roof control plan. (Tr. I, 106). Examiners must have experience and training to 

identify hazards like wide entries, draw rock, rib sloughage, damaged bolts, and rib rolls, rib 

sloughage, and bottom pressure. (Tr. I, 106, 134, 219-220, II, 24, 79-80). An examiner should 

sound the top, take measurements, check the lifeline (including tripping hazards), check the 

SCSR caches, refuge chambers, examine stoppings, check ventilation control, and spend 

additional time on suspicious areas. (Tr. I, 134, 219-220, II, 79-81). With the lifeline, he would 

look for cones (facing the proper direction and properly spaced), proper connections, proper 

location, reflector spacing, balls for the mandoor signs, and the signs themselves so miners can 

use the lifeline if there is no visibility. (Tr. I, 220, II 79-80). Examiners focus on things that 

changed from the previous week. (Tr. II, 114). However, it is possible for some conditions to be 

missed on an examination and for that examination to be adequate. (Tr. I, 196, II, 113). 

When an examiner sees a condition, he should immediately report it and correct it. (Tr. I, 

106, 227, II, 81). If a condition cannot be corrected, it should be dangered off. (Tr. I, 106, II 28, 

81). To danger an area off, a marker board or danger tape is hung at eye level around the hazard. 

(Tr. I, 237). If there is a lifeline in the area, it is moved to where conditions are safe. (Tr. I, 237-

238). Then he would let management know about the condition so it could be corrected. (Tr. II, 

28). There is no situation where an examiner must identify a hazard but is not required to correct 

the condition. (Tr. I, 106). If no hazard is found, that is also entered in the book. (Tr. I, 227). As a 

result, all weekly examinations are recorded. (Tr. I, 227). 

At the mine, it was Peterson’s job to follow-up on recorded hazards and to double check 

airway examinations. (Tr. II, 28-29). In order to double check airway examinations, Saunders 

would look at footprints on the bottom. (Tr. II, 81). Footprints should zig-zag and be near 

 20 Citation No. 8154927 was issued five minutes before Order No. 8154928. (Tr. I, 104-

105). After seeing the fly board Dempsey told Peterson that if he saw another condition he would 

issue a citation for an inadequate examination. (Tr. I, 104-105). Once he saw the third condition, 

it did not matter which violation he issued first. (Tr. I, 105). Peterson did not recall Dempsey 

commenting about a possible inadequate examination after the second citation. (Tr. II, 44-45). 

36 FMSHRC Page 937
crosscuts and doors. (Tr. II, 82). He would know someone was making corrections if he saw rebolts, draw rock pilled down, rib sloughage removed, material moved from under the life line, 

new signage and new timbers. (Tr. II, 81-82). In short, he would look at everything that the 

examiner would inspect and then check the book to see if it matched. (Tr. II, 82). 

At the time of the instant citations, there were five day examiners. (Tr. I, 225). All of the 

examiners were qualified to examine airways. (Tr. I, 226). Work was divided between these 

examiners with each airway assigned on a specific day. (Tr. I, 225-226). Harding had inspected 

the primary escapeway on April 17. (Tr. I, 226, II, 11). 

Harding testified that when preparing to make an examination, he would review the 

books for the prior examination and discuss it with management. (Tr. I, 238, II, 8). He did this to 

determine if there were any changes in conditions or to look at anything that was added. (Tr. I, 

238). The previous week’s information allowed him to make a more detailed exam. (Tr. I, 239). 

Sometimes things on prior examinations would alert him to hazards. (Tr. I, 238-239). He knew 

that there were draw rock issues at the time. (Tr. II, 8).

On the day of the examination, Harding traveled 2.5 miles from the portal through the 

primary escapeway at issue. (Tr. I, 240, II, 8). He walked from the portal inby to the double 

doors. (Tr. I, 39, II, 8). Some of the exam would be walked, but the rest would be on a ride. (Tr. 

I, 241). The area where the citations were issued was walked. (Tr. I, 233-234, 241-242). 

Harding traveled to all of the areas where conditions were cited in Citation Nos. 8154925, 

8154926, and 8154928. (Tr. II, 8-9). All of his notes were in the record for the week ending 

April 20, 2013. (Tr. II, 9-10). He examined the seals, refuge chamber, and caches. (Tr. II, 9). 

Harding carried a “pry bar” to sound the top and pull down draw rock. (Tr. I, 233-234). When 

sounding the top, he listened for a drumming or hollow sound. (Tr. I, 234). A hollow sound 

meant an area needs to be scaled. (Tr. I, 234, 236). Harding also examined the roof for damaged 

bolts. (Tr. I, 234-235). As he inspected the escapeway, he moved in a zig-zag pattern looking at 

the lifeline, roof, and ribs near the lifeline. (Tr. I, 235-236). He also looked at the ventilation 

controls at each crosscut. (Tr. I, 236). When inspecting mesh, Harding checked to make sure that 

nothing was lying in the mesh that could cause leaks of a fall. (Tr. I, 257). At the area with the 

timbers, Harding checked to see if the timbers were tight, if any had fallen, and made sure there 

was no draw rock. (Tr. I, 261-263). He also looked for signs of stress and cracks in the roof and 

ribs and for sloughage. (Tr. I, 263-264). 

An examination of the primary escapeway would take 1.5 to 2.5 hours. (Tr. I, 240-241, II, 

9). Harding was given a much time as necessary to complete it. (Tr. I, 270). Some days it takes 

substantially longer than others due to conditions discovered. (Tr. I, 270). Harding had the 

necessary resources to remedy any condition observed or, at least, to danger it off. (Tr. I, 270-

271). Harding took examinations, including the examination on the 17th, very seriously because 

in case of an emergency, he is responsible for the safety of every man in the mine. (Tr. I, 270). 

On the 17th, Harding had no concerns about men using the area during a fire drill, the 

lifeline was intact. (Tr. I, 256-257, 270). Further, before a fire drill, the foreman would make a 

supplemental examination of the entire area the miners would travel. (Tr. II, 111). The foreman 

36 FMSHRC Page 938
would look for conditions that could affect miners during a fire drill. (Tr. II, 111). An extra 

examination might also be done if a crew were going to work in the area. (Tr. II, 112). Dempsey 

would not expect an extra exam before a fire drill. (Tr. I, 167). 

Dempsey stated that the number of conditions that Harding failed to find that made this 

examination inadequate.21 (Tr. I, 191). Citation No. 8154925, Citation No. 8154926, and Order 

No. 8154928 were not included in the examination record. (Tr. I, 108-109). Any casual observer 

could have seen a majority of the problems, and a trained examiner should have seen the rest. 

(Tr. I, 109). However, Dempsey conceded that no citations were issued for lifelines, ventilation 

controls, cones on safety lines, or mandoors in the 1,200 feet between the first citation and the 

order. (Tr. I, 193-194). Also, the roof bolt spacing was in the single area. (Tr. I, 194). 

Harding reviewed his examination record. (Tr. II, 10). That record did not show that the 

entry was wide as cited in Citation No. 8154925. (Tr. II, 10-11). It also did not show that the 

bolts were widely spaced or that there was draw rock in the area. (Tr. II, 11). The record also did 

not show that there was draw rock on the fly board as cited in Citation No. 8154926. (Tr. II, 11). 

Finally, the record did not note the mesh panels cited in Citation No. 8154928. (Tr. II, 11). 

After the citation, Saunders walked the rest of the escapeway, from the mesh to the 

portal, to determine if there were any other causes for concern. (Tr. II, 90-91). He looked for 

water accumulations, dust, foot prints, and date boards. (Tr. II, 92). Some date boards were 

signed more than required by law. (Tr. I, II, 92-93). He saw old and new timbers, footprints 

zigging and zagging, and good signage. (Tr. II, 93). The lifeline indicators were good, there were 

several rebolts, fallen rock was thrown away from the lifeline or the lifeline itself was moved to 

avoid hazards, and the dusting was good. (Tr. II, 93). No other citations were issued. (Tr. II, 93). 

Saunders believed that the walkway had been very adequately examined. (Tr. II, 94). It looked 

like there was good examinations with good follow up. (Tr. II, 94).

Dempsey believed all of these conditions existed at the time of the examination on the 

17th. (Tr. I, 109). However, he could not say for sure what day Harding examined the cited 

escapeway because Respondent varied areas. (Tr. I, 195-196). His analysis of the time was based 

on his mining and MSHA experience and mine conditions. (Tr. I, 110). 

The wire mesh condition had existed for a considerable time. (Tr. I, 109). Harding failed 

to find the improperly installed mesh and accumulated draw rock, creating a “time bomb.” (Tr. I, 

191). Dempsey had no doubt the condition existed when Harding was in the area. (Tr. I, 197). 

Harding testified he did not observe this condition. (Tr. I, 269-270). Had he seen it he would 

have corrected it. (Tr. I, 270). He did not believe the condition existed the previous day. (Tr. I, 

244-245, 247-248, II, 12, 18). Further, Harding and Peterson believed most of the rock in the 

mesh was fresh. (Tr. I, 255-256, II, 51, 55). Finally, the cited material would have struck Harding 

in the nose and neck, meaning it would be hard for an examiner to walk under it. (Tr. I, 188-189, 

245). 

 21 Dempsey conceded that he was not an examiner and had never conducted an airway 

examination, but as an inspector it was not his job to do a workplace examination. (Tr. I, 202). 

36 FMSHRC Page 939
The draw rock on the fly board eased down over time. (Tr. I, 109). Dempsey believed 

that condition was present at Harding’s exam. (Tr. I, 195). Harding should have sounded the roof 

and pulled down the rock here. (Tr. I, 109-110, 191). Haring testified that he did not observe this 

condition and that it was not present. (Tr. I, 259, 269, II, 18). It could have developed from one 

day to the next. (Tr. I, 260-261). Peterson saw dust on the rock and concluded the rock was on 

the fly board for a while. (Tr. I, II, 43-44). Harding would have dangered it off and fixed it if it 

had been present. (Tr. I, 269).

The wide entry, improperly spaced bolts, and draw rock had “without a shadow of a 

doubt,” existed when the exam was made; the bolts and entry had existed for years. (Tr. I, 110, 

191, 195,197). However, it is possible for draw rock to occur in the hours after an examination. 

(Tr. I, 191-192). The amount of time it takes for draw rock to become apparent varies; it is hard 

to make generalizations. (Tr. I, 192-193). Dempsey believed this draw rock had been in the cited 

location since the day before because it gapped down and had fallen. (Tr. I, 192). Harding 

testified that he did not observe or ignore this condition. (Tr. I, 268-269). Harding was looking 

for many things and this could cause a condition to be overlooked. (Tr. I, 269).

All of the conditions that led to the issuance of this citation occurred in the primary 

escapeway.22 (Tr. I, 106-107). The lifeline traveled through each of the areas. (Tr. I, 107). 

Dempsey testified that miners work and travel there. (Tr. I, 110). Harding did not believe miners 

normally worked or traveled in this area, it was not a “main track.” (Tr. I, 243). 

The citation was marked S&S because there was a violation of a standard that contributed 

to a hazard. (Tr. I, 110-111). The intent of the examination is to correct conditions and this was 

not done. (Tr. I, 111). There was a reasonable likelihood of a significant injury. (Tr. I, 111). 

The citation was marked as “fatal” because rock falls could cause crushing injuries. (Tr. 

I, 111). Also, the 14 miners in the fire drill would be affected. (Tr. I, 111). 

The citation was marked as “high” negligence because the conditions were obvious, 

extensive, examined by an agent and supervisor, and there was a degree of risk to the miners. 

(Tr. I, 111-112). Dempsey believed there were no mitigating circumstances. (Tr. I, 112). 

Dempsey could not recall a situation where an examiner missed something and he did not feel 

there was high negligence. (Tr. I, 196). 

This condition was an unwarrantable failure, or aggravated conduct. (Tr. I, 112, 197-

198). The standard was similar to what Dempsey looked for in high negligence. (Tr. I, 112). It 

was inexcusable to allow the conditions to exist in an escapeway that miners depend of for their 

lives in an emergency. (Tr. I, 112). The condition was obvious, extensive, had existed for a long 

time, and should have been caught. (Tr. I, 198). Dempsey maintained that the wide entry was 

open and obvious even though his notes stated it was not overly obvious. (Tr. I, 914). The area 

with the wide entry condition would have had 280 weekly examinations since development. (Tr. 

 22 A roof fall occurred in this area on 8/21/2013. (Tr. I, 107, II, 69). This roof fall was 

caused by bad roof. (Tr. II, 69). Efforts were taken to strengthen this area by setting cribs, posts, 

and narrowing down the area. (Tr. II, 69).

36 FMSHRC Page 940
I, 198). The obviousness is not undercut because this may not always have been the primary 

intake. (Tr. I, 198-199). Even if it was always the primary intake, Dempsey believed the 

condition was easy to spot. (Tr. I, 199). 

Dempsey conceded that before the instant inspection, he had no reason to question the 

adequacy of examinations at Powellton. (Tr. I, 117). The previous inspector at the mine did not 

express any concern over this issue. (Tr. I, 117-118). Dempsey does not recall any earlier roof 

control citations, S&S, or “high” negligence citations. (Tr. I, 118). 

Dempsey also conceded that some examination was performed because he saw a signed 

date board. (Tr. I, 120-121) He had no reason to question whether it was performed. (Tr. I, 120). 

Harding’s notes state that he set timbers, scaled the top, and repaired a lifeline. (Tr. I, 120-121). 

These are to some extent the notes Dempsey would expect, but he wanted to see the areas 

correctly identified. (Tr. I, 120). 

Harding testified he had been accompanied by MSHA inspectors (Hartenstein, Dishman, 

and Van Dulan) during previous examinations (Tr. I, 271). During those inspections the mesh, 

the wide entry, and the wide bolt would have been present. (Tr. I, 271-272). None of these 

inspectors stated that the condition of the mesh was unsafe or that it was installed improperly. 

(Tr. I, 273). Further, Peterson was present for the “close-out” conference the prior quarter with 

inspectors Bane and Dishman. (Tr. II, 29). They were concerned about the roof, and corner bolts. 

(Tr. II, 29-30). They went over the violations written that quarter. (Tr. II, 30). They did not 

discuss specific issues with the primary escapeway or the installation of mesh. (Tr. II, 30). 

Dempsey could not say if another inspector should have issued a citation earlier because 

it was possible this entry was not formerly the primary escapeway. (Tr. I, 125, 138). He did not 

know the function of this particular air course in the four or five years after development. (Tr. I, 

126, 138). If the entry was not being used, no one would inspect it. (Tr. I, 147). It is also possible 

the condition was not discovered. (Tr. I, 125). If this area was a primary escapeway since 

development, then it would have been examined weekly since 2008 and inspected quarterly by 

MSHA inspectors. (Tr. I, 136). If that were the case, the condition went unnoticed by examiners 

and MSHA inspectors. (Tr. I, 139-140, II, 19). Dempsey would expect his fellow inspectors to 

notice the condition. (Tr. I, 136, 140, 146-147). However, they were not highly negligent, an 

inspector sometimes misses conditions. (Tr. I, 141). He noted that even if MSHA missed 

conditions in the past, Respondent was still required to follow the law.23 (Tr. I, 202). Harding 

testified that this area had been the primary escapeway since 2008 because the location allowed 

miners to walk in fresh air. (Tr. I, 262, II, 11-12). 

This condition was abated when a supplemental examination was conducted by Peterson 

on the primary escapeway from the section to the surface. (Tr. I, 112, 251). It was conducted 

 23 According to Dempsey, Harding’s role as the examiner and agent of Respondent was 

to ensure that the escapeway was safe if needed in an emergency. (Tr. I, 146). MSHA role when 

conducting an inspection is to look for hazards, ensure the company is doing adequate examines, 

and ensuring the safety of employees who may work or travel in the area. (Tr. I, 146). Those 

roles are similar with respect to examining the primary escapeway. (Tr. I, 146). 

36 FMSHRC Page 941
immediately, but Dempsey did not fill out the form until he saw the examination record. (Tr. I, 

112-113). Harding was not ordered to be re-trained as part of abatement. (Tr. I, 197).

III. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The 

Evidence That § 75.364(a)(1) Was Violated.

On April 18, 2013, Inspector Dempsey issued a 104(d)(1) Citation, Citation No. 8154927 

to Respondent. Section 8 of that Citation, Condition or Practice, reads as follows: 

The Operator has failed to conduct an adequate examination of the intake/primary 

escapeway for the #1 working section. Between #26 xcut along #9 beltline to the 

overcast near #8 Belt head 3 obvious and extensive violations were found. These 

violations include, 1) a wide entry w/excessive bolt spacing and loose draw rock, 

20 unsupported broken draw rock held up by a 1” fly board, and 3) Wire mesh 

bowed down by the weight of draw rock it is supporting @ overcast near #8 head 

(Portions of the wire mesh are secured with tie wire instead of the proper plates. 

This violation is an unwarrantable failure to comply with a mandatory standard. 

(GX-3). 

Standard 30 C.F.R. §75.364(b)(1) (“Weekly Examination”) provides the following: 

(b) Hazardous conditions and violations of mandatory health or safety 

standards. At least every 7 days, an examination for hazardous conditions and 

violations of the mandatory health or safety standards referenced in paragraph 

(b)(8) of this section shall be made by a certified person designated by the 

operator at the following locations: 

(1) In at least one entry of each intake air course, in its entirety, so that the entire 

air course is traveled. 

30 C.F.R. §75.364(b)(1) 

 Examinations are of “fundamental importance in assuring a safe working environment 

underground.” Buck Creek Coal Co., Inc., 17 FMSHRC 8, 15 (1995). Examiners are required to 

examine for roof conditions, rib conditions, wide entries, draw rock, sloughage, damaged bolts, 

rib rolls, bottom pressure, problems with the top, issues with the lifeline (including tripping 

hazards and directional symbols), SCSR caches, refuge chambers, stoppings, ventilation 

controls, and suspicious areas. (Tr. I, 104-106, 134, 219-220, II, 24, 79-81). With respect to the 

instant citation, there is no question that Respondent’s examiner, Harding, conducted a weekly 

examination the day before the three conditions at issue here were found. (Tr. I, 226, II, 11). 

Therefore, the only question is whether that examination was adequate. 

The hazardous conditions cited in Citations/Order Nos. 8154925, 8154926, and 8154928 

were all located in the primary escapeway that Harding inspected on April 17. (Tr. I, 226, II, 11). 

36 FMSHRC Page 942
For the reasons stated supra, all of those issuances were upheld as valid and S&S. However, 

these conditions were not included in the weekly examination record. (Tr. I, 107-109). In fact, 

Examiner Harding confirmed that these conditions were no included in the record. (Tr. II, 10-

11). For the reasons already given supra, these conditions (particularly the improperly installed 

mesh) were at least somewhat obvious. The Administrative Law Judge credits the testimony of 

the inspector that those conditions should have been included in the record of the weekly 

examination. (Tr. I, 103-104). Therefore, the preponderance of the evidence shows Respondent’s 

weekly examination was inadequate. 

Respondent presented several arguments for the proposition that the examination was 

adequate. However, those arguments were not supported by the record. 

First, Respondent argued that the mesh condition was not obvious because the draw rock 

was fresh and had not been sagging the previous day. (Respondent’s Post-Hearing Brief at 29). 

As noted in the discussion of that order, Inspector Dempsey credibly testified that the condition 

was obvious. (Tr. I, 97-98). Further, the issue was the inadequate installation, not necessarily the 

time at which the rock fell. The inadequate installation had been obvious since the mesh was 

installed. Therefore, it should have been noted in the weekly examination. 

Next, Respondent argued that the piece of draw rock was not present the day before. 

(Respondent’s Post-Hearing Brief at 29). As discussed previously, Inspector Dempsey credibly 

testified that the condition existed for some time before the citation was issued. (Tr. Tr. I, 66-68). 

It might have been less obvious than at the time of the citation. However, an examiner still 

should have known the condition was present and corrected it or dangered it off. 

Finally, Respondent argued that the wide entry and misplaced bolt were not obvious and 

that other examiners, including MSHA inspectors, did not notice this. (Respondent’s PostHearing Brief at 29). Respondent also notes that Inspector Dempsey was not a certified 

examiner. (Id.). As noted in the discussion regarding the underlying citation, this condition was 

not overly obvious. However, Inspector Dempsey, despite his lack of examining credentials, 

noticed this condition (which Respondent concedes existed). Therefore, someone with all of the 

proper training should have seen the condition and noted it in the examination record. 

Therefore, the Administrative Law Judge finds that the instant citation was validly issued. 

2. The Violation Was Significant And Substantial In Nature And Reasonably 

Likely to Result in Fatal Injury to 14 Miners

Inspector Dempsey marked the gravity of the cited danger in Citation No. 8154927 

“Reasonably Likely” to result in “Fatal” injury to 14 persons. (GX-12). These determinations are 

supported by a preponderance of the evidence. 

The event against which the instant standard, 30 C.F.R. §75.364(b)(1) is contact by 

miners with correctable hazards. For the reasons discussed with respect to each individual 

citation, the hazards present here posed a reasonable likelihood of fatal injury to miners. Further, 

36 FMSHRC Page 943
for the reasons discussed with respect to Citation No. 8154925, up to 14 miners would be 

exposed to these hazards. 

Citation No. 8154927 was also marked as S&S. (GX-12). It has already been established 

that the first element of the Mathies S&S analysis, the underlying violation of a mandatory safety 

standard, has been established with respect to this citation. As discussed supra, Respondent 

violated 30 C.F.R. §75.364(b)(1). 

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, the preponderance of the evidence 

shows that the violation created a tripping hazard. The Commission has recognized examinations 

as “of fundamental importance in assuring a safe working environment underground.” Buck 

Creek Coal, 17 FMSHRC at 15; see also Jim Walter Resources, Inc., 28 FMSHRC 579, 598 

(Aug. 2006). Chairman Jordan and Commissioner Marks have referred to the preshift inspection 

requirement as “the linchpin of Mine Act safety protections.” Manalapan Mining Co., Inc., 18 

FMSHRC 1375, 1391 (August 1996) (Jordan and Marks, concurring and dissenting in part). 

MSHA requires several layers of examinations, including on-shift, preshift, and weekly 

examinations, in order to ensure miner safety. “These examinations are designed to create a 

multi-layer, prophylactic approach to the identification and correction of hazardous or unsafe 

conditions in the mine.” Coal River Mining, LLC, 34 FMSHRC 1087, 1095 (May 2012) (ALJ 

Andrews). 

While much of the reasoning in these cases discusses pre-shift, rather than weekly, 

examinations, they are sufficiently analogous for our purposes here. The Commission has been 

clear that examinations act as first line of defense with respect to hazards. Here, the failure of 

Respondent to conduct an adequate examination contributed to the miners’ exposure to the 

hazards discussed with respect to Citations/Order Nos. 8154925, 8154926, and 8154928 

The third element of the Mathies test – a reasonable likelihood that the hazard contributed 

to will result in an injury – is also met. In the event that any or all of the hazards at issue here 

were realized, miners would be fatally crushed by falling roof material. (Tr. I, 110-111). 

Respondent argued that there was no evidence that an injury could result from this 

violation. Specifically, it argued that the underlying conditions were not likely to result in injury 

for the same reasons discussed with respect to each citation or order. Once again, with respect to 

the third element of Mathies, the issue is whether someone would be injured if there was a roof 

collapse in this area. As discussed with respect to each of the underlying issuances, in that event 

injuries would occur. 

The fourth element - a reasonable likelihood that the injury in question will be of a 

reasonably serious nature – As noted supra, rock fall injuries are inherently severe. 

 

36 FMSHRC Page 944
3. Respondent’s Conduct Displayed “High” Negligence And Was The Result Of

An Unwarrantable Failure To Comply With the Standard.

The instant citation was marked as “high negligence.” Inspector Dempsey credibly 

testified that this determination was made because the three underlying conditions were obvious, 

extensive, and were examined by an agent and supervisor. (Tr. I, 111-112). Therefore, 

Respondent knew or should have known that the condition existed. For the reasons discussed 

above, Respondent was either highly or moderately negligent with respect to all three of the 

Dempsey also credibly testified that there were no mitigating circumstances. (Tr. I, 112). 

He believed that any time an examiner missed these sorts of conditions it should be high 

negligence. (Tr. I, 196). One of the underlying issuances, Order No. 8154928, was affirmed as 

having no mitigating factors for the reasons discussed supra. Therefore, the Administrative Law 

Judge finds that there were no mitigating circumstances here. 

Respondent argued that there were several mitigating factors. (Respondent’s PostHearing Brief at 28-30). This argument was not supported by the evidence. 

Respondent asserted that all of the arguments it made with respect to validity were 

equally persuasive with respect to high negligence and unwarrantable failure. Specifically, it 

argued that none of the conditions (the entries, the wide bolts, the draw rock, or the improperly 

installed mesh) were obvious. For the reasons set forth in the discussion of validity, the evidence 

does not support this contention. There were not mitigating factors. 

The evidence presented also supported the Secretary’s determination that Respondent’s 

actions were an unwarrantable failure. With respect to that determination, the Administrative 

Law Judge will consider each of the IO Coal factors in turn: 

1. Extent Of The Violative Conditions

The evidence, as discussed at length above, shows that three reasonably likely, fatal, S&S 

conditions existed in a quarter mile area of the mine. These conditions affected the entire width 

of the entry in places. Therefore, the preponderance of the evidence shows the condition was 

extensive. 

2. The Length of Time of the Violation Existed

The conditions missed by the examiner existed for widely variable amounts of time. The 

wide entry and misplaced bolts had existed for years. (Tr. I, 110, 191, 195, 197). The draw rock 

had existed for quite a while (though that condition might not have been overly obvious until the 

day of the citation). (Tr. I, 192). Finally, the improperly installed mesh had existed for at least 

several months and maybe longer. (Tr. I, 95, 245-247). Therefore, Respondent had conducted 

inadequate examinations for several years, with conditions deteriorating further over time. 

36 FMSHRC Page 945
3. Whether the violation is obvious or poses a high degree of danger 

The violation at issue here posed a considerable danger. As discussed supra, this 

condition was reasonably likely to result in fatal, injuries to 14 miners. The inadequate 

examination failed to notice or correct these conditions. Further, for the reasons discussed 

extensively, the conditions were obvious, especially the mesh. Therefore, the inadequate 

examination should have noted these conditions and corrected them. 

4. Whether the operator had been placed on notice that greater 

efforts were necessary for compliance or that this condition was an 

issue. 

Respondent had an extensive violation history with respect to §75.202(a). Further, it was 

well known that this mine had trouble with draw rock. (Tr. I, 42). Respondent also had history 

with roof falls. (Tr. I, 42, 202-203). Therefore, Respondent was on notice that its examinations of 

these conditions should have been thorough and focused on roof control. 

5. The operator’s efforts in abating the violative condition 

The parties stipulated that the condition was abated quickly and in good faith. (JX-1). 

6. Operator’s knowledge of the existence of the violation 

 As discussed at length, Respondent knew or should have known about the underlying 

conditions. Therefore, it knew or should have known that its examinations were inadequate. 

 In light of the size of the violation, the length of time it had, the obviousness and high 

degree of danger posed by the condition, the notice Respondent received regarding the need to 

control the top, Respondent’s knowledge of the cited condition, and the fact that Respondent’s 

actions are best characterized as “high” negligence, the Administrative Law Judge finds that this 

violation was an unwarrantable failure on the part of the operator. 

4. Penalty

In light of the fact that the Administrative Law Judge has affirmed the Secretary’s 

citation as issued, it is appropriate to affirm the assessed penalty as issued. Therefore, 

Respondent is hereby ORDERED to pay a civil penalty in the amount of $42,944.00 with 

respect to this violation. 

 

36 FMSHRC Page 946
ORDER

It is hereby ORDERED that Citation/Order Nos. 8154925, 8154926, 8154927, and 

8154928 are AFFIRMED as modified herein. 

Respondent is ORDERED to pay civil penalties in the total amount of $172,944.00 

within 30 days of the date of this decision.24

 /s/ William S. Steele

 William S. Steele 

 Administrative Law Judge 

Distribution: 

Pollyanna E.F. Hampton, Esq., U.S Department of Labor, Office of the Solicitor, 1100 Wilson 

Blvd, 22nd Floor West, Arlington, VA 22209 

Eric L. Silkwood, Esq., Hardy Pence PLLC, 500 Lee Street, East, Suite 701, PO Box 2548, 

Charleston, WV 25329 

/tjb 

 24 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 947
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 

April 8, 2014 

SECRETARY OF LABOR, MINE 

SAFETY AND HEALTH 

ADMINISTRATION, on behalf of 

CHARLES RIORDAN, 

 Complainant 

v. 

KNOX CREEK COAL CORP., a 

subsidiary of ALPHA NATURAL 

RESOURCES, INC., 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. VA 2014-199-D 

NORT-CD 2014-02 

Mine: Tiller No. 1 

Mine ID 44-06804 

DECISION AND ORDER REINSTATING CHARLES RIORDAN

Appearances: 

Karen M. Barefield, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, Virginia, 

for the Secretary of Labor. 

Wes Addington, Esq., Appalachian Citizens Law Center, Whitesburg, Kentucky, for Complainant. 

Stephen M. Hodges, Esq., Penn Stuart, Abingdon, Virginia, for the Respondent Knox Creek Coal. 

Before: Judge Moran 

 A temporary reinstatement hearing was held in this matter on April 2, 2014, in Pikeville, 

Kentucky. For the reasons which follow, the Court finds that the application was not frivolously 

brought and consequently it is ordered that Charles Riordan be reinstated to his former position 

with all attendant benefits, effective immediately. 

Temporary Reinstatement Under the Mine Act

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Mine Act. The purpose of the protection is to encourage miners Ato play 

an active part in the enforcement of the [Mine Act],@ recognizing that, Aif miners are to be 

encouraged to be active in matters of safety and health, they must be protected against any possible 

36 FMSHRC Page 948
discrimination which they might suffer as a result of their participation.@ S. Rep. No. 181, 95th 

Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and Health Act 

of 1977, at 623 (1978). 

Section 105(c)(2) of the Mine Act provides in relevant part that AAny miner or applicant 

for employment or representative of miners who believes that he has been discharged, interfered 

with, or otherwise discriminated against by any person in violation of this subsection may, within 

60 days after such violation occurs, file a complaint with the Secretary alleging such 

discrimination. . . . [I]f the Secretary finds that such complaint was not frivolously brought, the 

Commission, on an expedited basis upon application of the Secretary, shall order the immediate 

reinstatement of the miner pending final order on the complaint.@

In adopting section 105(c), Congress indicated that a complaint is not frivolously brought 

if it Aappears to have merit.@ S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in 

Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In 

addition to Congress= Aappears to have merit@ standard, the Commission and the courts have also 

equated Anot frivolously brought@ to Areasonable cause to believe@ and Anot insubstantial.@ Sec'y of 

Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 

F.2d 738, 747 & n.9 (11th Cir. 1990) (AJWR@). Sec. obo Piper, Complainant, v. Kenamerican 

Resources, Inc. (June 2013) (Judge Andrews), 2013 WL 3865343 at *2. 

The Commission itself Ahas repeatedly recognized that the >scope of a temporary 

reinstatement hearing is narrow, being limited to a determination by the judge as to whether a 

miner's discrimination complaint is frivolously brought.= [JWR supra] It is Anot the judge's 

duty, nor is it the Commission=s, to resolve the conflict in testimony at this preliminary stage of 

the proceedings.@ Sec'y on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 

1999). In reviewing a judge's temporary reinstatement order, the Commission has applied the 

substantial evidence standard. See, id. at 719; Sec'y on behalf of Peters v. Thunder Basin Coal 

Co., 15 FMSHRC 2425, 2426 (Dec. 1993). Id. at n. 2@ Sec. obo Rodriguez v. C.R. Meyer and 

Sons Co. 2013 WL 2146640 at *5 (May 2013). 

ATemporary Reinstatement is a preliminary proceeding, and narrow in scope. The plain 

language of the Act states that >if the Secretary finds that such complaint was not frivolously 

brought, the Commission, on an expedited basis upon application of the Secretary, shall order the 

immediate reinstatement of the miner pending final order on the complaint.= 30 U.S.C. '

815(c)(2). The judge must determine whether the complaint of the miner >is supported substantial 

evidence and is consistent with applicable law.= Sec'y of Labor on behalf of Peters v. Thunder 

Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993). Neither the judge nor the Commission is 

to resolve conflicts in testimony at this stage of the case. Sec'y of Labor on behalf of Albu v. 

Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999) (AChicopee Coal@). A temporary 

reinstatement hearing is held for the purpose of determining >whether the evidence mustered by the 

miners to date established that their complaints are nonfrivolous, not whether there is sufficient 

evidence of discrimination to justify permanent reinstatement.= Jim Walter Resources, 920 F.2d at 

36 FMSHRC Page 949
744. >Congress intended that the benefit of the doubt should be with the employee, rather than the 

employer, because the employer stands to suffer a lesser loss in the event of an erroneous decision 

since he retains the services of the employee until a final decision on the merits is rendered.= Sec'y 

of Labor, on behalf of Curtis Stahl v. A&K Earth Movers Inc., 22 FMSHRC 233, 237 (ALJ)(Feb. 

2000).@ Sec. obo Piper, Complainant, v. Kenamerican Resources, Inc. (June 2013) (Judge 

Andrews), 2013 WL 3865343 at *2. 

Findings of Fact and Conclusions of Law 

At the hearing, the Complainant, Charles Riordan, testified. Mr. Riordan stated, quite 

credibly in the Court=s estimation, that he made several safety complaints to members of Knox 

Creek management about recurring problems with the mine=s ventilation. Complainant Riordan 

has been a coal miner for 32 years and a foreman for 25 of those. In 2013, until the date of his 

termination on December 13th of that year, he worked as an outby and as a fill-in foreman. During 

2013 he made several safety complaints, most of which pertained to a lack of adequate ventilation. 

He voiced these complaints to Mark Jackson, the mine foreman and to the mine superintendent. 

Tr. 19-21. In September of 2013, while attending a company quarterly picnic held at the mine 

site, he again voiced his concern about the mine=s inadequate ventilation on the sections to Ron 

Patrick, general manager of Knox Creek. The following day, Mr. Jackson, according to Mr. 

Riordan=s account, told Riordan that he had Athr[own] him under the bus@ by informing Patrick of 

the ventilation problems. Tr. 24-25. Though Complainant was told that his termination was due 

to market conditions, to the best of his knowledge, no one else was fired that day, nor was there a 

reduction in the workforce at the mine.1

 Tr. 26. 

During cross-examination, counsel for Respondent inquired, among various areas of 

questioning, about Mr. Riordan=s complaints concerning inadequate ventilation.2 Complainant 

advised that he was essentially complaining about Ainadequate ventilation going to the sections.@ 

Tr. 35. Riordan stated that during this period, 2013, he did note hazardous conditions and there 

 1

 It should be noted that the Respondent presented no witnesses from Knox Creek Coal 

Corporation, nor its parent Alpha Natural Resources, Inc. to testify on the subject of terminations 

or workforce reductions. Even had there been witnesses testifying about such events, the 

temporary reinstatement application is not the time to sort out and resolve such conflicts regarding 

the reason for a miner=s termination. Instead, the inquiry is whether there was credible testimony 

on the issue of protected activity and whether adverse action followed that activity within some 

reasonable period of time after it. 

2

 Mr. Riordan stated that the mine=s ventilation shortcomings were not limited to line 

curtain problems. Tr. 45. He elaborated that his biggest ventilation problem pertained to air 

going down the beltline and not exiting down the return. While he was able to address a given 

inadequacy, these fixes were more in the nature of band-aids as the steps he took then created air 

problems on the opposite side of the section. Tr. 46-49. 

36 FMSHRC Page 950
were occasions when he noted in pre or on-shift inspection books about ventilation problems. Tr. 

37-38. Riordan, while maintaining that during this time period there was an occasion when there 

was inadequate airflow at the last open crosscut, never noted that in the inspection books. He also 

asserted that there were times when there was inadequate air at the face. For this issue too, he did 

not note this problem in his pre or on-shift reports. Tr. 42. 

These answers suggested that Mr. Riordan was being remiss, however he advised that, 

when encountering these inadequacies, he would take the steps needed to fix the problem. 

Further, the Court would note that the focus must remain on whether the Complainant engaged in 

protected activity and the Court finds that the record establishes, through Mr. Riordan=s credible 

testimony, that he did so engage in that activity and did so on more than one occasion. The record 

also establishes that there was animus expressed on the part of Mr. Jackson over his displeasure 

concerning the Complainant=s safety complaints. To that, there was the undeniable adverse 

action of Mr. Riordan=s termination. Certainly, the time frame of his termination was sufficiently 

close to his safety complaints for one to make an association between the two events. In the 

context of determining whether the application for reinstatement was non-frivolous, it is therefore 

reasonable to conclude that a nexus was established between the Mr. Riordan=s complaints and his 

termination. 

Following the testimony of Complainant Riordan, his representatives advised that they had 

no other witnesses to call, concluding their evidence for the application. Respondent then sought 

to call the MSHA Special Investigator for this case, David Smith. As Counsel Hodges expressed 

it, A[o]ur main purpose of calling [the special investigator] is to elicit more of his investigation than 

what he put in his affidavit.@ Tr. 69-70. Counsel asserted that this was Ain some sense . . . part of 

the factual basis for the relief that=s sought.@ Tr. 70. Counsel continued that he wanted to inquire 

about Aother things [the special investigator] does; and they have to deal with these issues about the 

layoffs in the other mines . . .@ Tr. 70. It will be recalled that Knox Creek=s competing narrative 

is that the Complainant was Aterminated@ for business contraction reasons. Respondent=s Counsel 

added that he wanted to inquire about aspects of his investigation which were not included in the 

special investigator=s affidavit. In sum, it was the contention of Respondent=s Counsel that part of 

the basis for the assertion that this application was not frivolously brought is the investigator=s 

affidavit and from that premise, the Respondent then maintains that the affidavit was Aincomplete 

in a very significant way.@ Tr. 71. 

The Court noted two things about the Respondent=s approach to establishing frivolousness. 

First, the Secretary=s case, at hearing, was based on the testimony of Complainant Riordan. 

Second, for the purposes of a temporary reinstatement proceeding, the Court had misgivings about 

permitting cross-examination over what was not in the special investigator=s affidavit. Tr. 72. 

As the Secretary=s Counsel noted, the affidavit was based upon information gathered by the special 

investigator from the Complainant and Respondent had a full opportunity to cross-examine the 

Complainant in the proceeding. Tr. 73. In this regard the Court would note that 29 C.F.R. 

'2700.45(d) states that the ASecretary may limit his presentation to the testimony of the 

complainant,@ which is what occurred here. Although the same provision states that the 

Respondent Amay present testimony and documentary evidence in support of its position that the 

complaint was frivolously brought,@ this right is subject to appropriate objections and limitations. 

36 FMSHRC Page 951
The Secretary contended that questions concerning what was not included in the affidavit fits 

within such objections. The Court agrees because, although permitting questions about what was

not included in the affidavit could, potentially, present competing testimony about the reason for 

the Complainant=s termination, such possible alternative contentions are not to be resolved in the 

temporary reinstatement proceeding. Instead, they must await the full discrimination proceeding 

which may ensue.3 Chicopee Coal, 21 FMSHRC at 719. 

The Court, upon hearing objections to Respondent=s Counsel=s intentions, ruled that 

questions could only be asked about what was within the four corners of the special investigator=s 

affidavit. That affidavit was entered into the record as Exhibit 1. However, for the most part, the 

questions which ensued were attempts to inquire about matters not within the affidavit and 

objections to those questions were all sustained. Tr. 79, 80, 81. 

In summary, the Court finds that the Respondent did not present evidence, either directly, 

or through cross-examination, to dispel the evidence establishing that this application was not 

frivolously brought. The Court does not buy into Respondent=s claim that links in the evidentiary 

chain were missing. Respondent contended, in its closing statement, that evidence linking the 

protected activity with the person or persons who had to decide which people would be terminated 

was missing. Along this theme, it asserted that evidence was needed to establish the role of Mr. 

Jackson in the termination that affected the Complainant and that a showing of non-frivolousness 

requires showing Athat the people who were complained to were the people who made the decision 

that resulted in the adverse activity.@ Tr. 86-87. In the Court=s view, the Respondent is incorrect. 

The contentions it asserts have their place in a full discrimination proceeding, but not here in the 

temporary reinstatement context. 

Conclusions 

Having noted that the testimony on the subject of protected activity, and whether adverse action 

was motivated in any part by such activity, came solely from the Complainant, Mr. Riordan, and 

that he was a forthright and credible witness, it is accurate to observe that there really was no 

conflicting evidence on those elements, in determining whether the complaint appears to have 

merit. It is not an oversimplification to state that most of the Respondent=s challenge to the 

application was, in truth, an attempt to present a competing narrative, through the Complainant, 

that he was not really fired but let go, that is, Aterminated,@ to use the term employed by 

Respondent=s Counsel, as part of a realignment with sister mines owned by Alpha Natural 

Resources, Inc. However, the fundamental problem with that approach, putting aside for the 

moment that the sole source for the competing narrative was derived solely through the 

 3

 The Court believes that this conclusion would also be correct, even if, instead of trying to 

make its contention through what was not included in the special investigator=s affidavit, the 

Respondent had marched up several Knox Creek management witnesses, each of whom testified 

that Riordan was terminated for economic contraction reasons. The reason for the Court=s 

conclusion remains the same; competing narratives over the reason for an employee=s termination 

are not to be resolved at the temporary reinstatement proceeding. Instead, the focus is upon 

whether the claim is non-frivolous. 

36 FMSHRC Page 952
Complainant, is that the temporary reinstatement application is not the proceeding for the 

resolution of such a competing narrative. Rather, the Court must focus upon whether there is 

credible substantial evidence presented to show that protected activity occurred, that adverse 

action resulted and that there was evidence of a nexus between those events. Here, as noted, the 

court finds that the record at the application proceeding provided substantial evidence of the 

Complainant=s engaging in protected activity, voicing his concerns over ventilation problems, on 

several occasions, that the Complainant made these concerns to management and thus there was 

awareness of the concerns, that at least one member of management expressed hostility toward the 

Complainant over his voiced ventilation concerns, and that adverse action, in the form of 

termination occurred within a time frame thereafter which was sufficiently close in time to 

establish, on this record, and within the context of temporary reinstatement, that the application 

was not frivolously brought. 

ORDER

On the basis of the foregoing, the Court finds that the Secretary and Complainant=s private 

counsel presented sufficient evidence at the hearing to establish that this discrimination complaint 

is non-frivolous. Accordingly, it is ORDERED that the Respondent immediately re-instate the 

Complainant, Charles Riordan, as of the date of this ORDER, to his former position, or 

equivalence, at the same rate of pay and benefits that he was receiving at the time of his 

termination. The Secretary is directed to provide a status report of its discrimination investigation 

within 30 days of this decision. 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

Karen M. Barefield, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

22nd Floor West, Arlington, VA 22209-2247 

Stephen M. Hodges, Esq., PENN STUART, 208 E. Main Street, Abingdon, VA 24210 

Wes Addington, Esq., Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40502 

36 FMSHRC Page 953
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 

April 10, 2014 

 

DECISION

Appearances: Daniel McIntyre, Esq., Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, for Petitioner; 

 Meredith A. Kapushion, Esq., Jackson Kelly, PLLC, Denver, Colorado, 

for Respondent. 

 

Before: Judge Manning 

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

Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), 

against Peabody Caballo Mining, LLC, (“Peabody”) 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 Gillette, 

Wyoming, presented closing arguments, and submitted case summaries. 

The Secretary proposed a total penalty of $734.00 for two citations adjudicated at the 

hearing. Both citations were issued at the Rawhide Mine, a surface coal mine in Campbell 

County, Wyoming. For the reasons expressed below, I modify Citation No. 8475874 and vacate 

Citation No. 8475971. 

On May 16 and 17, 2012, MSHA Inspector Wayne Johnson inspected the Rawhide Mine. 

Inspector Johnson has worked as a Mine Safety and Health Inspector for more than 7 years. (Tr. 

15). He earned an Occupational Safety Degree from Marshall University and graduated from the 

Mine Safety and Health Academy. Id. Inspector Johnson testified that he has twenty-six years 

of experience in coal mining. He was accompanied by Jeff Wheeler, safety representative at the 

mine site, during the inspection. (Tr. 19). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

PEABODY CABALLO MINING, LLC, 

 Respondent 

: 

: 

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:

 CIVIL PENALTY PROCEEDING 

 Docket No. WEST 2012-1311 

 A.C. No. 48-00993-293531 

 Rawhide Mine 

36 FMSHRC Page 954
I. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

A. Citation 8475874

Inspector Johnson issued Citation No. 8475874 on May 17, 2012, for an alleged violation 

of section 77.206(e) of the Secretary’s safety standards. (Ex. G-1). The citation alleges that a 

roof access ladder upon the MCC building did not have sufficient toe clearance at the ninth rung. 

Inspector Johnson determined that an injury was reasonably likely to occur, that such an injury 

could reasonably be expected to result in lost workdays or restricted duty, and that one person 

would likely be affected. Further, he determined that the violation was significant and 

substantial (“S&S”) and the operator’s negligence was moderate. Section 77.206(e) of the 

Secretary’s safety standards provides that “[f]ixed ladders shall be anchored securely and 

installed to provide at least 3 inches of toe clearance.” 30 C.F.R. § 77.206(e). The parties agree 

that the fixed ladder at issued was anchored securely. The Secretary proposed a penalty of 

$634.00 for this citation. 

 

Inspector Johnson testified that the ninth rung was approximately 8 feet above the ground 

and there was 1 to 1 1/2 inches of toe clearance behind the rung. (Tr. 22-23). Inspector Johnson 

testified that Wheeler agreed that the measurements were accurate. (Tr. 24-25). Inspector 

Johnson testified that two horizontal insulated pipes, which ran perpendicular to the ladder, 

contacted the ladder at the same level as the ninth rung, thus interfering with the toe clearance on 

that rung. (Tr. 26-27). Inspector Johnson further testified that the insulation of the piping 

showed signs that miners’ feet contacted the pipes while using the ladder. (Tr. 27-28). 

Inspector Johnson chose to cite the ladder after learning that miners used it to maintain 

the heating and air conditioning system (“HVAC”) upon the roof of the building. (Tr. 23-24). 

Adding to the danger posed by this allegedly hazardous condition, Inspector Johnson testified 

that miners carried large HVAC filters up the ladder every month. (Tr. 30, 68, 80-82). Because 

miners climbing the ladder could fall approximately 8 feet onto the hard ground below, Inspector 

Johnson testified that the injury could be permanently disabling. (Tr. 29). He marked the 

gravity as “lost workdays or restricted duty” in the citation. (Ex. G-1; Tr. 75-76). 

Duane Myers, the Safety Manager for the Mine, testified that he had 35 years of 

experience in coal mining. (Tr. 114). He testified that miners could maintain three points of 

contact while ascending the ladder. (Tr. 129). He did not believe that miners climbed the ladder 

holding a HVAC filter; instead, they dropped a rope to raise the filter after climbing the ladder. 

(Tr. 153). He also disputed the measurement of space between the ladder rung and the insulated 

pipe, testifying that 3 inches of toe clearance existed if the measurement was taken at a slight 

angle. (Tr. 136-137). Myers admitted that if he were consulted when the ladder was installed, 

he would advise that it be placed where the pipes would not interfere with any of the rungs. (Tr. 

141). 

For the reasons set forth below, I uphold Citation No. 8475874 but reduce the level of 

negligence. 

 

36 FMSHRC Page 955
Parties’ Arguments

The Secretary argues that the cited condition reflects a clear violation of the toe clearance 

requirement. The standard requires at least 3 inches, yet the inspector testified that the 

interfering pipes allowed no more than 1 1/2 inches. (Tr. 11). The Secretary argues that an 

injury was likely due, in part, to the severe weather that occurs in Wyoming. (Tr. 11, 30-31). 

The inspector believes that miners who climb the ladder are frequently carrying HVAC filters or 

tools. (Tr. 24, 30). 

Peabody argues that there was insufficient evidence to support the violation. (Tr. 186). 

Peabody maintains that indentations upon the lower pipe insulation at the ninth rung prove that 

miners had sufficient toe clearance. It argues that these indentations establish that there was 

plenty of toe clearance when standing on the ninth rung of the ladder. (Tr. 186). There was no 

showing that miners were unable to maintain three points of contact at all times. 

Peabody also disputed how much clearance between the rung and the pipe actually 

existed. (Tr. 109). Peabody noted that Inspector Johnson was the only person who climbed the 

ladder and took the measurement. (Tr. 64). Peabody also argues that a backguard surrounded 

the ladder, which prevented anyone from falling backwards. Peabody contends that the 

Secretary did not establish that miners carry HVAC filters, supplies, or tools as they ascend or 

descend the ladder. (Tr. 67). Further, Peabody noted the lack of evidence that the ladder is used 

during hazardous weather. (Tr. 70). 

Discussion and Analysis

I find that the Secretary established a violation because the ladder did not provide the 3 

inches of clearance that section 77.206(e) requires. I credit the testimony of Inspector Johnson 

that he accurately determined that the distance between the ninth rung and the pipes was between 

1 and 1 1/2 inches.1 His photographs corroborate his testimony. (Exs. G-3, G-5, G-8). I also 

find that the violation created a hazardous condition, even in ideal weather conditions when 

miners are not carrying tools or supplies up the ladder. 

 

 1

 Inspector Johnson could not remember if he measured the distance between the rung 

and the outer edge of the ladder’s support structure that pressed against the pipes at the ninth 

rung or at a lower rung. I find that either measurement would accurately reflect the distance at 

issue. There is no dispute that he climbed the ladder to examine the conditions at the ninth rung. 

36 FMSHRC Page 956
I find that the violation was S&S.2

 The Commission and courts have observed that an 

experienced MSHA inspector’s opinion that a violation is significant and substantial is entitled to 

substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998). I 

credit Inspector Johnson’s testimony concerning the condition and find that the cited condition 

was reasonably likely to contribute to an injury. The Secretary established that the violation 

created a discrete safety hazard and satisfied the first two elements of the Mathies test. The 

commission has held: 

The test under the third [S&S] element is whether there is a 

reasonable likelihood that the hazard contributed to by the 

violation . . . will cause injury. The Secretary need not prove a 

reasonable likelihood that the violation itself will cause injury . . . . 

Musser Eng’g, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010). The hazard contributed to by a 

violation of section 77.206(e) is the risk of falling. The location of the insulated pipe and the 

lack of clearance made it likely that a miner would not have a good foothold. The two insulated 

pipes abutted each other. It appears that miners placed the toes of their boots between the two 

pipes because the lack of clearance forced them to search for a better foothold. A miner is more 

likely to lose his balance and fall due to the poor foothold in the event of inattention, wind, or a 

variety of factors, which contributes to the risk of injury as a result of the 8 foot fall onto the hard 

ground below. While miners may maintain three points of contact much of the time, if they 

unexpectedly slip upon the ninth rung as a result of the poor foothold, they could fall and would 

likely sustain a serious injury. 

 I reject Peabody’s argument that the backguard required by 30 CFR § 77.206(c) 

eliminated the severity of this violation. It is clear that the backguard would prevent a miner 

from falling further away from the ladder. (Tr. 67). The guard, however, would not prevent a 

miner from falling 8 feet to the ground or from becoming entangled in lower rungs of the ladder. 

A miner can easily be injured by a short fall from a ladder. 

 The evidence establishes that the most likely injuries would result in lost workdays or 

restricted duty, not a permanent disability. The gravity was serious. I also find that Peabody’s 

negligence was low. The pipes and fixed ladder were present for many years without MSHA 

issuing a citation or commenting upon the situation. 

 2

 An S&S violation is a violation “of such nature as could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d) 

(2006). 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 

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 957
Citation No. 8475874 is MODIFIED to reduce the negligence to low. A penalty of 

$500.00 is appropriate for this violation. 

B. Citation 8475971

Inspector Johnson issued Citation 8475971 on May 16, 2012, alleging a violation of 

section 77.205(a). (Ex. G-10; Tr. 33). The cited standard states that a “[s]afe means of access 

shall be provided and maintained to all working places.” 30 C.F.R. § 77.205(a). The citation 

alleged that a travelway crossed below an elevated conveyor belt which brought coal from the 

crusher area into the silo. Inspector Johnson observed that there was no guarding under the 

conveyor belt’s idlers. (Tr. 12, 36). Inspector Johnson testified that if the bearings for an idler 

roller failed, the roller could fall onto a miner using the travelway. (Tr. 36). One miner walked 

under the conveyor at least once per shift. (Tr. 37). Inspector Johnson determined that an injury 

was unlikely to occur but that if a miner were injured it would likely be permanently disabling. 

Further, he determined that the violation was not S&S and the operator’s negligence was low. 

The Secretary proposed a fine of $100.00 for the citation. 

Duane Myers testified that if an idler roller wears out it would not fail completely without 

obvious signs lasting for hours, such as smoke, worn belts, and noise. (Tr. 124-25). Even when 

they fail, Myers testified that the rollers used by Peabody at that location do not fall. Id. 

Benjamin Ortiz, the maintenance planner for the mine, testified that he had never seen the 

type of idler roller used at the mine drop away from the belt in his 37 years of mining experience. 

(Tr. 157, 169). He told the court that miners inspect the idlers and pulleys at least once per shift 

and that more significant maintenance upon the system is performed quarterly. (Tr. 159). 

Further, he testified that the cited idlers are “the finest quality you can buy” because they utilize 

heavy-duty shafting, cans, and bearings. (Tr. 160). Therefore, he testified that idler failure is 

“not a very frequent occurrence” and that when they do fail, “it’s a very slow failure” taking days 

or weeks. (Tr. 162-64, 175). Peabody would replace failing idler before it would fall. 

Summary of the Parties’ Arguments

The Secretary argues that the cited condition violates the safe access requirement 

enumerated in section 77.205(a). He argues that the idlers, which are mounted above the 

travelway, could fall to the floor because they were unguarded. (Tr. 12). The Secretary 

produced a picture from another mine, demonstrating how malfunctioning idlers present a falling 

hazard. (GX-20; Tr. 48). The Secretary also notes that idlers are guarded at other locations at 

the mine. (Tr. 47). 

Peabody argues that the citation was issued upon a purely speculative theory that is 

unlikely to occur. (Tr. 190). Peabody notes that an idler would not drop unless both bearings 

suffered a catastrophic failure that was undiscovered for a long period of time. (Tr. 190). The 

roller would have to “heat to such a degree and for such a prolonged period of time that it would 

melt the medal rod that runs through the center of the roller. . . .” (Tr. 190). Even if such a 

failure occurred, Peabody argues that the resulting sights, sounds, smells, and vibrations would 

36 FMSHRC Page 958
be obvious and it would remedy the condition before an idler could fall. (Tr. 190). Citing 

Ortiz’s testimony, Peabody asserts that the high quality idlers used at this mine can operate for 

decades without the type of bearing failure that could present a falling hazard. (Tr. 191-92). 

Discussion and Analysis

I find that the Secretary failed to fulfill his burden to show that Respondent violated 

section 77.205 and therefore I vacate Citation 8475971. At least one miner walks under the 

conveyor belt to a working place during most shifts, but the Secretary did not establish that safe 

access was not provided and maintained by Peabody. I credit the testimony of Ortiz and Myers 

with respect to this citation. In their 72 years of combined experience, they never observed a 

return idler that fell at the mine. The theory proposed by the Secretary is too speculative to 

establish a failure to provide safe access. 

I find that a reasonably prudent person would conclude that safe access was provided. 

The Commission has held that in interpreting a broadly worded standard “it is appropriate to 

evaluate the evidence in light of what a ‘reasonably prudent person, familiar with the mining 

industry and the protective purpose of the standard, would have provided in order to meet the 

protection intended by the standard.’ ” Ideal Cement Co., 12 FMSHRC 2409, 2415 (Nov. 1990) 

(citations omitted). 

In Big Sky Coal Co., Commission Judge Barbour noted that proof that an accident 

“could” occur “falls short of establishing [that] a reasonable person would have expected it. . . .” 

20 FMSHRC 582, 587 (Jun. 1998) (ALJ) (emphasis in original). Similarly here, though I 

recognize that it is remotely possible that one of the three return idlers could fail and then fall, I 

hold that a reasonably prudent person would conclude that it was unlikely and that Peabody 

provided the safe access to the working place on the top of the silo. 

The Secretary did not show that a return idler was likely to fail and fall onto the walkway. 

I find that the evidence establishes that such an event was virtually impossible due to the roller 

design and Peabody’s examination and maintenance protocol. The photographs taken by the 

inspector demonstrate that the rollers were of substantial construction, properly installed, and in 

excellent condition. (Exs. G-12 – G-19). I find that Peabody provided safe access to the 

working places in the cited area.3

 I therefore VACATE Citation No. 8475971. 

II. APPROPRIATE CIVIL PENALTIES 

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. I have considered Peabody’s history of previous violations as 

presented in the Assessed Violation History Report. (Ex. G-24). At all pertinent times, Peabody 

Caballo Mining, LLC, was a large mine operator and its parent company, Peabody Energy 

Corporation, was also large. The violations were abated in good faith. The penalty assessed in 

 3

 The citation did not allege that miners could be injured by material falling from the belt 

because the belt transported clean coal that has been processed into “very fine coal.” (Tr. 56). 

36 FMSHRC Page 959
this decision will not have an adverse effect upon the ability of Peabody Caballo Mining, LLC, 

to continue in business. The gravity and negligence findings are set forth above. 

III. ORDER

For the reasons set forth above, I VACATE Citation No. 8475971 and I MODIFY

Citation No. 8475874. Peabody Caballo Mining, LLC, is ORDERED TO PAY the Secretary of 

Labor the sum of $500.00 within 30 days of the date of this decision.4

/s/ Richard W. Manning 

Richard W. Manning 

Administrative Law Judge 

Distribution: 

Daniel McIntyre, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 

800, Denver, CO 80202-5708. (Certified Mail) 

Meredith A. Kapushion, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 

80202-1958. (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 960
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

April 14, 2014

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner

v.

WOLF RUN MINING CO.,

 Respondent

CIVIL PENALTY PROCEEDING

Docket No. WEVA 2008-1265

A.C. No. 46-04168-151760

Mine: Sentinel 

DECISION ON REMAND APPROVING SETTLEMENT

ORDER TO MODIFY

ORDER TO PAY

Before: Judge Barbour

This case is before me upon a petition for assessment of a civil penalty filed under

section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The

Solicitor has filed a motion to approve settlement. A reduction in the penalty from $142,900.00

to $70,000.00 is proposed. The Solicitor also requests that Order No. 6605922 be modified to

remove the flagrant designation. 

I have considered the representations and documentation submitted in this case, and I

conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i)

of the Act.

WHEREFORE, the motion for approval of settlement is GRANTED.

It is ORDERED that Order No. 6605922 be MODIFIED to remove the flagrant

designation. 

36 FMSHRC Page 961
1

 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

It is further ORDERED that the operator pay a penalty of $70,000.00 within thirty days

of this order.1

/s/ David F. Barbour 

 David F. Barbour

Administrative Law Judge

Distribution:

Linda M. Henry, Esq., Office of the Solicitor, US DOL, The Curtis Center, Suite 630E, 170 S.

Independence Mall West, Philadelphia, PA 19106-3306

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401 Liberty

Avenue, Pittsburgh, PA 15222

/DM

36 FMSHRC Page 962
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 

April 16, 2014 

RONALD E. KEIM, III 

 Complainant 

 v. 

CORDERO MINING, LLC, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2013-537-D 

DENV CD 2013-06 

Cordero Mine 

Mine ID 48-00992 

ORDER GRANTING RESPONDENT’S 

MOTION FOR SUMMARY DECISION

Before: Judge McCarthy 

 I. Procedural Background

 This case is before me upon a discrimination complaint filed by Ronald E. Keim, II, 

(“Keim” or “Complainant”) pursuant to section 105(c)(3) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 815(c)(3).1 Complainant’s December 14, 2012 pro se discrimination 

complaint filed with the Mine Safety and Health Administration (MSHA) essentially alleges that 

on August 28, 2012, Complainant was suspended without pay, placed on a “Last and Final 

Warning” and one-year performance plan, and threatened with discharge. The complaint further 

alleges that Keim was improperly disciplined during the previous two years. Complainant seeks 

back pay for the suspension, performance pay that was lost during the one-year action plan, 

expungement of disciplinary records, compensatory damages for pain and suffering to self and 

family, and transfer from “D Crew” to “C Crew” to work with his father, Scott Keim. 

 On April 2, 2013, Respondent filed an Answer denying that Keim engaged in any 

protected activity, denying that Keim suffered any adverse action motivated by any protected 

activity, and alleging that Keim was disciplined for unprotected activity, specifically, his pattern 

of subjecting his co-workers to lewd, offensive and threatening behavior. 

 1

 Complainant’s brother, Kip Allen Keim, filed a separate pro so complaint of 

discrimination against Respondent in Docket No. WEST 2013-442-D. As discussed below, my 

Notices of Hearing consolidated the brothers’ discrimination cases for hearing. Respondent has 

filed a Motion for Summary Decision in both cases. Having reviewed Respondent’s Motions for 

Summary Decision and Complainants’ responses, I now sever the previously consolidated cases. 

I will address Respondent’s Motion for Summary Decision in Kip Keim’s case by separate 

Order. 

36 FMSHRC Page 963
 By letter dated February 4, 2013, MSHA determined that the facts disclosed during the 

investigation did not constitute a violation of Section 105(c). By letter dated February 26, 2013, 

Keim appealed MSHA’s determination of no discrimination to the Commission and claimed that 

review would establish that he had been “treated unfairly” and that post-complaint changes to 

crew personnel have improved morale and reduced workplace stress. 

 This case was assigned to the undersigned on March 28, 2013. The next day, I instructed 

Keim to provide a copy of his original complaint to MSHA, which set forth his allegations of 

discrimination or adverse treatment and any instances of protected activity in which he engaged. 

In response, Keim provided a letter addressed to MSHA dated December 14, 2013, and a copy of 

his statement provided to MSHA during the course of their investigation. 

 Keim’s complaint alleges a novel theory of protected activity. He states that co-worker 

Dave Alaniz was the source of the complaints about Keim and that Alaniz is the reason that 

Keim is on an action plan. Complaint at 2. Keim further states that at some unspecified time in 

2012, Keim and several other miners brought to management’s attention that Alaniz was creating 

a disgusting and hostile work environment. Keim’s complaint states that it was a hostile 

environment because Alaniz has complained to Human Resources about Keim and other miners 

and “threatened” to have them fired, but that Keim was the only one disciplined. Id. Keim 

alleges that Alaniz told Keim, in a statement laced with expletives, that he allows everyone to 

work there and he can fire any one he wants. Keim states that “this” is a “great safety issue” 

because the miners “deal with huge equipment and over head cranes that lift huge pieces of steel 

[that] are unforgiving and with having fellow workers (just out of college) worrying about their 

jobs is unsafe, because their minds are not on the task.” Id. Keim also alleges that Alaniz comes 

to work with holes in his pants exposing his genitals, just daring co-workers to say something, 

and that management has acknowledged that Alaniz is a problem. Id. 

 

 Similarly, in his deposition, Keim testified that sometime in 2012, Keim complained to D 

Crew Lead, B.J. Hubble, that Alaniz was creating a hostile work environment that prevented 

others from safely performing their jobs. Ron Keim Depo. at 111:16-22; 115:9-16. Keim also 

complained to Clint Cooper, Rebuild Shop Maintenance Manager, that Alaniz was creating a 

hostile work environment. R. Ex. O at 2. Keim, however, has never alleged that his complaint to 

mine management was in any way related to the disciplinary measures imposed on him by 

Respondent. Instead, Keim contends that he initiated this proceeding with the hopes that a third 

party would intervene to stop what he perceived as preferential treatment towards Alaniz. Id. at 

149:5-15. 

 On May 2, 2013, my office issued a Notice of Hearing for August 27, 2013 in Gillette, 

Wyoming consolidating Ron Keim and Kip Keim’s discrimination cases for hearing. On August 

9, 2013, the hearing location was moved to Casper, Wyoming. In the interim, several conference 

calls were held with the parties regarding pre-hearing issues and discovery matters. After 

agreement, an Amended Notice of Hearing issued on August 20, 2013 setting this matter for 

hearing on October 15, 2013 in Casper, Wyoming. 

36 FMSHRC Page 964
 On August 19, 2013, during a conference call with the parties, Keim was asked to state a 

specific example of his protected activity under the Mine Act. Keim responded that he had been 

reprimanded for “cussing in the break room and playing inappropriate music when even upper 

management cusses in the break room and on the shop floor.” Conference Call Tr., p. 9 (Aug. 19, 

2013). In addition, Keim confirmed that his complaint to MSHA completely covered the scope 

of his allegations in this case. Id. 

On September 5, 2013, the undersigned ordered disclosure of certain documents to 

Complainant subject to Confidentiality Order in the originally consolidated matter. 

 On September 10, 2013, Respondent filed a Motion for Summary Decision, with attached 

exhibits.2

 Respondent argues that Keim’s claim is time-barred because no adverse action 

occurred within sixty days of his complaint. Respondent also argues that Keim cannot establish a 

prima facie case because he did not engage in any protected activity and has failed to show any 

adverse action motivated by such activity. Finally, Respondent argues that Keim would have 

been disciplined for unprotected activity alone after he engaged in disruptive and inappropriate 

workplace behavior. 

 On October 1, 2013, Complainant Keim filed a one-page response in opposition to 

Respondent’s motion, restating his earlier arguments and presenting new allegations of 

discrimination occurring in the spring of 2011. Complainant’s Letter in Response to Motion to 

Dismiss (Oct. 1, 2013). In that letter, Keim contends that his problems with management first 

arose when Respondent allegedly violated the Health Insurance Portability and Accountability 

Act (HIPAA) privacy rules by disclosing a medical condition of Keim’s that was discovered 

during a random drug screening in 2011. Id. Keim’s letter did not mention any exercise of rights 

under the Mine Act. Id. 

 Thereafter, the federal government shutdown compelled rescheduling of the October 15, 

2013 hearing. On November 8, 2013, an Amended Notice of Hearing issued setting this matter 

for hearing on February 18, 2014 in Casper, Wyoming. During a conference call on January 24, 

2014, the parties agreed to reschedule the hearing until May 8, 2014 to enable the parties to 

complete outstanding discovery requests and to enable Respondent to submit a Third Supplement 

to Motion for Summary Decision with the deposition transcript of a third party in the Kip Keim 

matter. On February 7, 2014, an Amended Notice of Hearing issued setting this matter for 

hearing on May 8, 2014 in Casper, Wyoming. 

On March 10, 2014, Ron Keim wrote a letter to the undersigned and sent a copy 

separately to Respondent’s counsel. In that letter, Keim states that on February 21, 2014, the 

Cordero Human Resources office, headed by Director Amy Clemetson, accused Keim of 

additional harassment, including drawing faces on cardboard boxes and overhead doors in the 

 2

 Respondent’s Motion for Summary Decision is designated “R. Mot.” and the attached 

exhibits are designated “R. Exs. A-Q.” 

36 FMSHRC Page 965
shop, and threatening Alaniz with physical harm if he ever saw him off mine property. Keim 

denied the allegations and signed a paper to this effect, purportedly to keep his job. He alleges 

that there were no problems with Alaniz or Hubble, who had been transferred off D-Crew, until 

recently, when Alaniz was put in the cat bay on straight days, such that Alaniz’s break and 

Keim’s D-Crew break coincided. Keim asserts that “all hell has broken lose meaning that 

anything and everything has become offensive to (Alaniz)” since Alaniz received a paper from 

management about witness preparation dates and court dates in this matter. Keim expresses the 

belief that the Clemetson and rebuild shop management are retaliating against him because of the 

instant “lawsuit” against the company, although Keim further acknowledges that other 

employees have been punished and also required to sign a paper, purportedly to save their jobs. 

Keim further asserts that “[w]ith all this going on it has been very difficult for me to perform my 

job properly and safely at the rebuild shop.” Keim concludes that he and his co-workers were 

singled out by Alaniz because of the past problems that they have all had with him and Keim reemphasizes that the recent harassment investigation began right after Alaniz received a paper 

from supervisor Roger Gillium setting forth witness preparation dates and court dates in this 

matter. Keim then writes, “on Sunday 2/23/2014 one of the DDS hands stopped me in the hall 

and told me that all DDS hands were basically threatened to lose their jobs by MSHA if the 

harassing faces don’t stop.” In a postscript, Keim asserts that he has been traveling from the 

rebuild shop to work at other Cloud Peak Energy mines, and that when he asked that his travel be 

reduced, his lead man, Kent Thurman, told him that Supervisor Gilliam said that Keim has to 

travel and would be sent home if he refused. See March 10, 2014 correspondence. 

 Keim has not filed a new or amended discrimination complaint with MSHA, which raises 

the new allegations in his March 10, 2014 letter. Therefore, MSHA has had no opportunity to 

investigate them. Accordingly, the issues raised by Keim’s March 10, 2014 letter are not before 

me. See Hatfield v. Colquest Energy, Inc., 13 FMSHRC 544, 546 (April 1991). Cf., SOL o/b/o 

Dixon v. Pontiki Coal Corp., 19 FMSHRC 1009, 1014-18 (June 1997); Carmichael v. Jim 

Walter Res., Inc., 20 FMSHRC 479, 484 and n. 9 (May 1998). 

 For the reasons that follow, Respondent’s Motion for Summary Decision is granted. 

 

II. Stipulations

 Pursuant to their respective pre-hearing reports, the parties have agreed to the following 

stipulations: 

1. Respondent is an operator within the meaning of the Mine Act. 

2. Cordero Mining LLC, Cordero Mine, Mine I.D. No. 48-00992, is subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 1997 (the “Mine Act”), 30 

U.S.C. §§ 801 et seq. 

36 FMSHRC Page 966
3. At all times relevant to this proceeding, Complainant, Ronald Keim, II (“Keim”), 

was a “miner” within the meaning of Sections 3(g) and 105(c) of the Mine Act, 30 U.S.C. 

§§ 802(g) and 815(c). 

 4. The Administrative Law Judge has jurisdiction in this matter. 

 5. Keim began working at the Cordero Mine during November 2007 as a welder. 

 

 6. Keim received a Written Warning for inappropriate behavior on July 15, 2011 as 

a welder. 

 7. Keim received a Last and Final Discipline for inappropriate behavior on August 

28, 2012. 

 8. On or about December 21, 2012, Keim filed a discrimination complaint with 

MSHA under § 105(c) of the Mine Act. 

III. Factual Background 

 Complainant works as a welder in Cloud Peak Energy’s Rebuild Shop. In the year and a 

half prior to filing his complaint, Complainant has had a contentious relationship with 

management. Keim received his first written warning on July 15, 2011 for complaints of 

inappropriate language and music and a verbal altercation with a co-worker over the volume of 

his radio. R. Ex. F; Complaint at 1. Keim does not deny the allegations of misbehavior that lead 

to the warning, but feels that he was unfairly singled out for punishment by management. Ron 

Keim Depo. at 59:20-22. Keim alleges that other employees, including members of management, 

used vulgar language and regularly played music containing obscene lyrics. Id. at 58:20-22, 

88:22, 144:5-12. In particular, Keim recalls that his co-worker, Dave Alaniz, regularly uses the 

“F-Word,” but alleges that management does not punish Alaniz. Id. at 144:22-145:5. 

 In April 2012, Keim received a promotion to Welder 4 and a corresponding pay raise. R. 

Ex. A. Keim states that Tim Bishop, rebuild shop supervisor, told him that “[w]e just need to 

“move on and put stuff behind us so we can . . . keep moving forward.” Ron Keim Depo. at 60:7-

10. 

 On August 16, 2012, Keim was called into a meeting with Bishop, human resources site 

manager, Doug Nutting, and rebuild shop maintenance manager, Clint Cooper. Complaint at 1; 

Ron Keim Depo. at 66:9-67-17. Nutting informed Keim that despite his excellent welding skills, 

management had received new complaints about his attitude on the job. Complaint at 1; Ron 

Keim Depo. at 67-68. Keim alleges that Nutting yelled at him saying “[t]hat my f***ing attitude 

has to change and I am tired of hearing about your s***.” Keim claims that he was not presented 

with any specific examples of offending conduct during this meeting. Id. 

36 FMSHRC Page 967
 Keim alleges that on August 23, 2012, Bishop belittled and embarrassed him in front of 

the crew by telling him to stay in the break room before another meeting was held to discuss 

complaints related to Keim’s conduct toward co-workers. Complaint at 1; Ron Keim Depo. at 

70:3-6. Bishop, Nutting, and human resource representative, Sheila Harshark, were present at the 

meeting. Complaint at 1. Nutting told Keim that management was again hearing complaints from 

the crew about Keim.3 Bishop allegedly jabbed his finger toward Keim and said the whole crew 

is complaining and tired of Keim’s “s***.” Complaint at 1. Keim also claims that Bishop told 

Keim that he gave Keim the raise because he thought “it would clean up [Keim’s] act.” Id. At the 

end of the meeting, Bishop and Nutting informed Keim that he was suspended without pay for 

the remainder of the day and that they would recommend that Keim’s employment be 

terminated. Ron Keim Depo. at 74:11-24; R. Ex. I. 

 On August 28, 2012, rather than terminating Keim’s employment, Respondent gave him 

a “Last and Final Warning Letter.” R. Ex. I. The warning states that because Keim’s behavior 

has not improved since the 2011 written warning, Keim will be placed on an action plan for one 

year during which his behavior will be closely monitored by his supervisor. Id. It further states 

that Keim is no longer eligible for performance pay for the third quarter of 2012, and that Keim 

is precluded from promotions or application for other company positions until his behavior 

improves. Id. 

 Although Keim does not deny the workplace misbehavior that management has used to 

justify the disciplinary measures, he argues that his behavior was misinterpreted and that he was 

singled out for behavior that other employees and management engage in without reprimand. 

Ron Keim Depo. at 144:6. Keim also states that mine management was dismissive of his 

complaints against Alaniz, particularly his complaint that Alaniz was spitting on the bus. Id. at 

113:24. Further, Keim’s MSHA complaint specifically alleges that Bishop and Nutting told him 

that his size intimidates others and that Keim believes that management has “stereotyped” and 

discriminated against him because he spends time off in the gym and eats healthy, but other guys 

are taller and bigger than he is. Complaint at 2. When asked why he believed that he was singled 

out for discipline, Keim responded that someone had a “beef” with him, but he did not know 

why. Ron Keim Depo. at 59:2-9. 

 

IV. Principles of Law

 Under Commission Rule 67, “a motion for summary decision shall be granted only if the 

entire record . . . shows: (1) [t]hat there is no genuine issue as to any material facts; and (2) [t]hat 

the moving party is entitled to summary decision as a matter of law.” 29 C.F.R. § 2700.67(b); see 

also Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981) (“[A] party must move for 

summary decision and it may be entered only when there is no genuine issue as to any material 

 3

 Keim admits that about this time he told bus driver Aaron McAllister to “open the door, 

man, or I’ll kick it open.” Keim testified that he “was just picking on him, just having fun, just 

trying to get home.” Ron Keim Depo. at 60:22-24. 

36 FMSHRC Page 968
fact and when the party in whose favor it is entered is entitled to it as a matter of law.”); 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).4

 The Commission has held that summary judgment is an extraordinary procedure that 

must be entered with care because erroneous invocation denies a litigant the right to be heard. 

Thus, when considering a motion for summary decision, the judge must draw all “justifiable 

inferences” from the evidence in favor of the non-moving party. FED. R. CIV. P. 56; Celotex 

Corp. v. Catrett, 477 U.S. 317, 327 (1986). The judge should only grant a summary decision 

“upon proper showings of the lack of a genuine, triable issue of material fact.” Energy West 

Mining Co., 16 FMSHRC 1414, 1419 (July 1994) (quoting Celotex Corp., 477 U.S. at 322). 

V. Analysis 

A. Keim’s Alleged Failure to Timely File His Discrimination Complaint

 Section 105(c)(2) states that a miner “who believes that he has been discharged, 

interfered with, or otherwise discriminated against by any person in violation of this subsection 

may, within sixty days after such violation occurs, file a complaint with the Secretary alleging 

such discrimination.” 30 U.S.C. § 815(c)(2). Complainant was issued his first written warning in 

July of 2011 and was placed on a Last and Final Warning on August 28, 2012. Keim’s 

Complaint to MSHA, however, was not filed until December 14, 2012, 108 days after the 

issuance of the Last and Final Warning. Respondent argues that Keim’s claim is time-barred 

because his allegations of adverse employment action did not occur within sixty days prior to the 

filing of his complaint of discrimination. Mem. of Points & Authorities in Support of R. Motion 

for Summary Decision at 10. 

 The Commission has found that the 60-day filing period for discrimination claims is not a 

jurisdictional bar and that timeliness questions must be examined on a case-by-case basis. David 

Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 24 (Jan. 1984), aff’d mem., 750 F.2d 1093 

(D.C. Cir. 1984). The relevant legislative history of the Mine Act supports this case-by-case 

approach when stating: 

 4

 Summary judgment is proper only if there is no reasonably contestable issues of fact 

that are potentially outcome determinative. See, e.g., Wallace v. SMC Pneumatics, Inc., 103 F.3d 

1394, 1396 (7th Cir. 1997). This standard mirrors the standard for a directed verdict under 

Federal Rule of Civil Procedure 50(a). Under that standard, the trial judge must direct a verdict 

if, under the governing law, there can be but one reasonable conclusion as to the verdict. If 

reasonable minds could differ as to the import of the evidence, however, a verdict should not be 

directed. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-251 (1986) (citing Brady v. 

Southern R. Co., 320 U.S. 476, 479-480 (1943); Wilkerson v. McCarthy, 336 U.S. 53, 62 

(1949)). 

36 FMSHRC Page 969
While this time-limit is necessary to avoid stale claims being 

brought, it should not be construed strictly where the filing of a 

complaint is delayed under justifiable circumstances. 

Circumstances which could warrant the extension of the time-limit 

would include a case where the miner within the 60-day period 

brings the complaint to the attention of another agency or to his 

employer, or the miner fails to meet the time limit because he is 

misled as to or misunderstands his rights under the Act. 

S. Rep. 95-181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate Subcommittee on Labor, 

Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 624 (1978). 

 It is clear from Keim’s interactions with this tribunal and his pro se status, that Keim is 

unaware of many of his rights and responsibilities under the Mine Act. When asked why he filed 

his complaint in December 2012, Keim seemed unaware that the Mine Act imposed any time 

limit for filing a discrimination complaint. Ron Keim Depo. at 148:20-23. Rather, Keim 

indicated that he was motivated by alleged discrimination against his brother Kip Keim, who 

works at the same mine. Id. 

 Although Keim has not provided any justification for the delay in filing his complaint, I 

find that some leniency is warranted given his pro se status. See Schulte v. Lizza Indus., Inc., 6 

FMSHRC 8, 12-13 (Jan. 1984) (pro se miner’s late filing may be excused in justifiable 

circumstances if filed thirty-one days late). Keim’s 48-day delay in filing is relatively short. 

Respondent has failed to present any evidence that such delay resulted in any actual prejudice to 

its ability to mount a defense. Furthermore, dismissal is a drastic remedy that is disfavored when 

based solely on a procedural irregularity. See, e.g., Salt Lake, 3 FMSHRC 1714, 1717 (July 

1981); Long Branch Energy, 34 FMSHRC 1984, 1992 (Aug. 2012). Accordingly, in the 

circumstances of this case, I decline to dismiss Keim’s complaint on the basis of his untimely 

filing. 

B. Keim’s Alleged Failure to Establish a Prima Facie Case of Discrimination

 To proceed on his discrimination complaint under the Mine Act, Keim has the burden of 

establishing a prima facie case of discrimination by presenting evidence “sufficient to support a 

conclusion that [he] engaged in protected activity and that the adverse action complained of was 

motivated in any part by that activity.” Sec’y of Labor on behalf of Donald E. Zecco v. 

Consolidation Coal Co., 21 FMSHRC 985, 989 (Sept. 1999); see also Tanglewood Energy, Inc., 

19 FMSHRC 833 (May 1997); Sec’y of Labor on behalf of David Pasula v. Consolidation Coal 

Co., 2 FMSHRC 2786, 2799-2800 (Oct. 1980). Such a burden is “lower than the ultimate burden 

of persuasion, which the complainant must sustain as to the overall question of whether section 

105(c)(1) has been violated.” Jayson Turner v. Nat’l Cement Co. of Cal., 33 FMSHRC 1059, 

36 FMSHRC Page 970
1065 (May 2011). To establish a prima facie case, a complainant need only provide evidence 

from which the trier of fact could infer employer retaliation for protected activity. Id. 

 Keim offers only one example that arguably could be construed as protected activity. 

Keim told Hubble and other managers sometime in 2012 that co-worker Alaniz was creating a 

hostile work environment that made it difficult for Keim’s crew to safely perform their jobs. See 

Ron Keim Depo. At 111:16-22; 115:9-16; Complaint at 2. 

 Keim’s allegations of discrimination in 2011 clearly predate the complaint to Hubble and 

thus cannot be evidence of adverse employment action motivated by protected activity. The Last 

and Final Warning, however, occurred in 2012, possibly after Keim made his complaints to 

management. In examining the record on summary decision, I view the facts in the light most 

favorable to the non-moving party and thus infer that Keim’s complaints predated the adverse 

employment actions. See Hanson Aggregates N.Y., Inc., 29 FMSHRC 4, 9 (Jan. 2007) (quoting 

Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962)). 

 Even assuming, arguendo, that Keim’s complaint to Hubble and other managers 

constituted protected activity, Keim has failed to establish a nexus between the protected activity 

and the adverse action taken by Respondent.5

 The Commission has found the following to be 

common circumstantial indicia of discriminatory intent: (1) knowledge of the protected activity; 

(2) hostility or animus toward the protected activity; (3) coincidence in time between the 

protected activity and the adverse action; and (4) disparate treatment of the complainant. Sec’y of 

Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd 

on other grounds, 709 F. 2d 86 (D.C. Cir. 1983); see also Sec’y of Labor on behalf of Baier v. 

Durango Gravel, 21 FMSHRC 953, 957 (Sept. 1999).

 Although Keim’s complaints concerning Alaniz were known to mine management and 

may have occurred in close temporal proximity to the adverse employment action, there is no 

evidence of disparate treatment or animus towards Keim’s complaints. While Keim has claimed 

disparate treatment in disciplinary actions taken in 2011 (complaints of inappropriate language 

and music), Keim has not presented any facts in support of disparate treatment in 2012. Further, 

there are no facts that establish that management was hostile to Keim’s complaints concerning 

Alaniz, nor are there any facts that suggest that management held any animus towards Keim for 

bringing such complaints to the attention of management. In fact, Keim avers that other rank-

 5

 Although the Commission has never addressed the issue, it is conceivable that under the 

particular facts and circumstances of a given case, reporting workplace violence or abuse that 

implicates concerns for safe performance of work tasks could raise to the level of protected 

activity under section 105(c) of the Mine Act. Cf. Complaint at 5, Harris v. Duane Thomas 

Marine Contr., LLC, No. 2:13-cv-00076-SPC-DNF (M.D. Fla. Feb. 5, 2013) (the Secretary 

brought a complaint under section 11(c) of the OSH Act of 1970 alleging that internal 

complaints to owner and/or external complaints to OSHA concerning workplace violence and 

verbal abuse constitute protected activity related to the OSH Act). The only allegations of 

workplace violence here concerns threats made by complainant Ron Keim. 

36 FMSHRC Page 971
and-file miners and even members of mine management had raised issues with Alaniz’s 

behavior. Ron Keim Depo. at 110:24, 117:13; see also R. Ex. P, at 5; R. Ex. Q, at 7. 

 Rather, it is clear from conference calls and correspondence with the parties, that Keim is 

unhappy with what he perceives as longstanding inequities in Respondent’s disciplinary 

procedures and managerial practices. Keim believes that Bishop is unreasonable in his belief that 

Keim should not be on the same crew as his father. Ron Keim Depo. at 167:10. Keim also asserts 

that because of his muscular physique, management gave undue credence to coworker’s 

complaints of threats and intimidation from Keim, which Keim allegedly uttered in jest. Further, 

Keim believes that management has not done enough to address Alaniz’s alleged overzealous 

reporting of workplace banter, which Alaniz finds objectionable. It is apparent that Keim seeks 

the aid of the Commission to arbitrate the aforementioned workplace disputes rather than address 

discrimination based on activities protected under the Mine Act. 

 It is well established that “[t]he Commission and its judges have neither the statutory 

charter nor the specialized expertise to sit as a super grievance or arbitration board meting out 

industrial equity.” Chacon, supra, 3 FMSHRC at 2516. Thus, regardless of the merits of Keim’s 

issues with management, a prima facie case of discrimination under the Mine Act cannot be 

established without some modicum of evidence supporting the contention that Keim’s protected 

activity, at least in part, motivated the adverse action, and that management exhibited animus 

toward that activity. After careful review of the documents submitted by both parties, I find no 

such evidence here, even when viewing the facts in the light most favorable to Complainant.6

 

 6

 While I need not pass on the validity of Respondent’s affirmative defense, it is worth 

noting that Keim has admitted to a history of inappropriate behavior. Specifically, Keim has 

admitted to the use of foul language, playing loud music with highly offensive lyrics, threatening 

to damage company property, threatening to fight colleagues, and posting a comment on 

Facebook that he was going to “kick [Hubble’s] ass.” Ron Keim Depo. at 44:1-22, 45:1-4, 53:23-

25, 54:1-25, 55:1, 55:10-25, 56:1-8, 57:8-19, 60:13-24. 

36 FMSHRC Page 972
VI. Order

 Complainant Ron Keim, II, has failed to establish any genuine issue of material fact that 

the adverse discipline taken against him was motivated, at least in part, by any protected activity 

in which he engaged, or that management harbored any animus toward such activity. 

Accordingly, Respondent’s Motion for Summary Decision is GRANTED. This case is 

DISMISSED, with prejudice. 

 /s/ Thomas P. McCarthy 

 Thomas P. McCarthy 

 Administrative Law Judge 

Distribution: 

 

Kristin R.B. White, Esq., Jackson Kelly, PLLC, 1099 18th Street, Ste. 2150, Denver, CO 80202 

Kip A. Keim, P.O. Box 3172, Gillette, WY 82717 

Ronald Keim, II, P.O. Box 3172, Gillette, WY 82717 

/tjr 

36 FMSHRC Page 973
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 

April 16, 2014 

DECISION ON LIABILITY

Appearances: Mark A. Sanchez, Esq., San Antonio, Texas, on behalf of Complainant Manuel A. 

Garza 

William K. Doran, Esq., Washington, D.C., on behalf of Respondent Hanson 

Aggregates, LLC. 

Before: Judge James G. Gilbert 

This case is before me upon a complaint of discrimination brought by Manuel A. Garza 

(“Garza”), a miner, against Hanson Aggregates, LLC, (“Hanson” or “the mine”), pursuant to 

section 105(c)(3) of the Federal Mine Safety and Health Act of 1977 “(Mine Act”), 30 U.S.C. § 

815(c). Complainant alleges that he was unlawfully discharged by Respondent Hanson on 

August 31, 2012. Garza alleges that his termination was motivated by discriminatory animus 

toward his protected activities, which consisted of reporting various safety issues regarding 

Hanson’s Servtex Plant.1

 Hanson denies the allegation of unlawful discrimination and asserts 

that Garza was fired for violations of safety practices that occurred several days before the date 

of his termination. 

 

 1 Section 105(c)(1) provides in pertinent part: 

No person shall discharge or in any manner discriminate against or cause 

to be discharged or cause discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner ... because such miner ... has filed or 

made a complaint under or related to this Act[.]

MANUEL A. GARZA, 

 Complainant, 

 v. 

HANSON AGGREGATES, LLC, 

 Respondent. 

: 

: 

: 

: 

: 

: 

: 

: 

: 

 DISCRIMINATION PROCEEDING 

Docket No. CENT 2013-307-DM 

SC MD 13-08 

Mine ID: 41-00059 

Mine: Servtex Plant 

36 FMSHRC Page 974
A two day hearing was held commencing on December 10, 2013, in San Antonio, Texas. 

I. Stipulations of Fact 

1. Respondent Hanson Aggregates, LLC, operates the Servtex plant located in New 

Braunfels, Texas. 

2. Operations at the Servtex plant are subject to the jurisdiction of the Mine 

Act. 

3. The Administrative Law Judge has jurisdiction in this matter pursuant to 

section 105 of the Act. 

II. Procedural Background 

On November 19, 2012, Garza filed a discrimination complaint with the Mine Safety and 

Health Administration (“MSHA”) pursuant to section 105(c)(2) of the Act. The Complaint was 

investigated by MSHA, and by letter dated February 4, 2013, MSHA determined that no 

discrimination had occurred. On February 27, 2013, Garza filed a discrimination complaint on 

his own behalf with the Federal Mine Safety and Health Review Commission pursuant to section 

105(c)(3) of the Mine Act.2

 On April 5, 2013, and again on April 10, 2013, and again on 

May 16, 2013, Respondent was ordered to file an Answer within thirty days. On May 22, 2013, 

Hanson filed an Answer denying the allegations of discrimination.3 On June 17, 2013, this 

matter was assigned to me. A Notice of Hearing and Site was issued on August 1, 2013, for a 

hearing scheduled for October 23-24, 2013, in San Antonio, Texas. As the result of a lapse in 

appropriations during the period leading to the scheduled hearing, the hearing was rescheduled in 

a conference call on October 17, 2013. Following the conference call, a Notice of Rescheduled 

Hearing and Site set the date for hearing as December 10-11, 2013, in San Antonio, Texas. Pre-

 2

 Section 105(c)(3) of the Act states in pertinent part: 

Within 90 days of the receipt of a complaint filed under paragraph (2), the 

Secretary shall notify, in writing, the miner, applicant for employment, or 

representative of miners of his determination whether a violation has occurred. If 

the Secretary, upon investigation, determines that the provisions of this subsection 

have not been violated, the complainant shall have the right ... to file an action in 

his own behalf before the Commission, charging discrimination or interference in 

violation of paragraph (1). The Commission shall afford an opportunity for a 

hearing ... and thereafter shall issue an order, based upon findings of fact, 

dismissing or sustaining the complainant's charges and, if the charges are 

sustained, granting such relief as it deems appropriate, including, but not limited 

to, an order requiring the rehiring or reinstatement of the miner to his former 

position with back pay and interest or such remedy as may be appropriate. 

3

 There is no information in the record to explain the multiple orders extending time for 

an Answer, all of which were issued prior to my assignment to the case. 

36 FMSHRC Page 975
hearing reports were filed by both parties in a timely manner. Although both parties were invited 

to submit post-hearing briefs, only Respondent chose to do so. 

III. Factual Background and Findings 

A. Garza’s Employment History 

Garza was employed by Hanson at its Servtex plant in New Braunfels, Texas (“Servtex”) 

beginning in March 1991. Tr. 383. During his 21 year career with Hanson, Garza served as a 

utility man, eventually being promoted to quarry supervisor of production in 2007. Tr. 383-84. 

Garza served as a supervisor for four years before he was demoted by Plant Manager Kenneth 

Early (“Early”) on June 1, 2011. Tr. 355, 393, 443, 551; Resp. Exh. 12. Garza accepted the 

demotion in lieu of termination and continued to be employed with Hanson until the date of his 

termination. Tr. 393; Resp. Exh. 10. 

B. Garza’s 2011 Demotion 

Garza served as a supervisor from approximately 2007 until his demotion on June 1, 

2011. Tr. 443. During this time he reported to Early directly. Tr. 383. Notwithstanding the 

demotion, there was no documentation introduced to refute that throughout the time Garza 

served as supervisor he performed his duties at an acceptable level.4

 Tr. 488. In fact, Keith 

Bechly (“Bechly”) Hanson’s Director of Human Resources for the South Region, testified that 

Garza had done a good job. Tr. 550. However, his employment relationship with Early was 

strained. There were multiple examples of difficulties Garza encountered with Early as his 

supervisor. One of the more significant of these involved Garza’s attempt to rectify a recent 

blasting of rock. 

Sometime in the first half of 2011, Garza was scraping the wall, which is a process by 

which fallen rock is removed so as to prevent the possibility of a rock slide into the base of the 

plant.5 Tr. 485-86. On this particular day, Early was hosting a meeting of other general 

managers at the facility. Tr. 385, 485. When Early encountered Garza scraping the wall, Early 

was incensed because this safety procedure interfered with production. Tr. 385. Although 

scraping the wall is a necessary safety procedure, Early delivered clearly his message to Garza 

that any such safety measures were second to the need to maintain production. Id. 

 4

 On rebuttal, Production Manager Jacob Scherer testified to a “best practices” team that 

he participated in that was critical of Garza’s operation of the base of the plant during the time he 

was supervisor. Tr. 652-54. Although he testified that those findings were presented to Early 

prior to Garza’s demotion, no record or copy of any written report to support the testimony was 

offered by Hanson, either at the hearing, or as a request to supplement the record post-hearing. 

Tr. 654. 

5

 In fact, such an incident occurred sometime prior to Garza’s termination when a rock 

slide came down and landed a few feet away from Garza, and Garza brought that safety 

infraction to the attention of Early at the time. Tr. 486. The record does not reflect when that 

rock slide occurred. 

36 FMSHRC Page 976
Within a month or two of this incident, Early sought to demote Garza from his position as 

supervisor. Tr. 487. Early consulted with Bechly. Tr. 492-93, 496. Bechly, for his part, could 

not specify or recall any basis for the demotion, other than Early’s statements about Garza’s lack 

of performance. Tr. 512, 515. There was no documentation offered to support Early’s position 

that Garza was not performing his duties. Tr. 515. There were no records introduced into 

evidence of any performance appraisals for Garza during this four year period as supervisor. 

Also, although Garza had been in the supervisor’s position for four years, Bechly did not require 

documentation when Early approached him with the request to demote Garza. Tr. 524. 

Likewise, Bechly did not make any inquiry of Early as to whether Garza had engaged in 

protected activity prior to this time. Tr. 513. While Bechly testified that such demotions were 

rare, Bechly concurred with the demotion notwithstanding the lack of any documentation to 

support the personnel action.6

 

Early told Garza that he could return as a leadman in the base of the plant, or face 

termination. Tr. 487. Garza accepted the demotion in lieu of being fired, but credibly testified 

that he still did not understand why he was forced to accept the demotion after four years as a 

supervisor. Tr. 485. 

C. Garza’s Relationship with Early 

Garza credibly testified to a long history of verbal abuse from Early. Tr. 391-393. 

Although Early’s reputation for verbal abuse was well known, and many in the plant were 

victims of his anger, Andy Gallegos (“Gallegos”), Garza’s supervisor, credibly testified that 

Garza was singled out by Early for particularly harsh treatment. Tr. 206-07. Incidents included 

the use of profanity, derogatory comments related to Garza’s perceived political affiliations, and 

other inappropriate offensive language. Tr. 207. Garza described an example of Early’s ongoing 

abuse. 

Q. How was Mr. Early’s demeanor, behavior towards you in these 

[safety] meetings? 

A. Oh, you know, he would kind of pick on me more, but he would also, 

you know, he would pinpoint me as Obama Garza, you know. I didn’t 

like it. I didn’t tell him nothing because I had respect for the man. It 

doesn't matter how much anybody says about you, you know, as long as 

you have that respect, you know, everything is going to be okay. But he 

would call me Obama Garza in front of all the supervisors in the meeting. 

Q. Where did that term come from, if you know? 

A. At one time they were talking about the economy being so bad, you 

know, production was pretty slow at the time. I said yeah, well, you know 

– some gentleman, Clayton Simpson said, yeah, we’re going to be all 

right, Obama is going to help us out. He said, you mean Obama Garza, 

 6

 Bechly testified that they discussed the possibility of placing Garza on a performance 

plan for 120 days, but that idea was rejected by Early, ostensibly to keep Garza employed at 

Servtex. Tr. 550. 

36 FMSHRC Page 977
and everybody just, like, got quiet, didn’t say nothing. And I just looked at 

him and what can I tell him, you know? I couldn't say nothing. 

Q. Had you ever brought politics into the workplace yourself? 

A. No, I don’t really talk politics to nobody. That’s kind of a closeddoors issues between me and myself. 

Q. Well, do you have any idea where he got the term Obama Garza? 

Why he picked on you like that? 

A. No, I don’t. 

Q. Is this something that occurred frequently at the meetings? 

A. Yes. 

Q. Would it happen at every meeting? 

A. Yes, almost all -- at every meetings they had to bring some kind of 

politics into it. 

Q. And would he single you out at these meetings? 

A. Yeah, he would call me Obama Garza. 

Q. Did he call you any other names? 

A. Not there. On the phone, yes. 

Q. What sort of names would he call you? 

A. He would just -- he would just say a lot of bad words to me when 

something wasn’t going his way. 

Q. Would he drop F bombs? 

A. Yes. He had plenty of those for me. 

Tr. 391-92.7

Although much of the abuse Garza took from Early occurred during his tenure as a 

supervisor, the abuse continued after his demotion from the position. 

D. Early’s Written Warning to Garza in July 2012 

On July 19, 2012, less than six weeks before his termination, Garza was given a written 

warning pertaining to a blown tire on the loader by his supervisor Gallegos. Tr. 221; Comp. Exh 

1. Garza knew that the nightshift operator had been spinning the tires and otherwise had abused 

the equipment. Tr. 427-28. Gallegos credibly testified that he saw the damage to the tire first 

thing in the morning and agreed with Garza that the damage had been done the night before. Tr. 

222, 224. Nevertheless, Early insisted that Garza be disciplined for the damage. Tr. 222. 

Gallegos protested to Early and explained to him that the night shift operator had damaged the 

tire. Tr. 222. Early told Gallegos to issue the written discipline to Garza anyway. Tr. 223. 

Garza objected to the written warning and placed his objection in writing on the corrective 

discipline form. Tr. 223; Comp. Exh. 1. For his part, Production Manager Jacob Scherer 

(“Scherer”) also disagreed with Early’s decision to take disciplinary action against Garza for the 

damage to the loader tire. Tr. 29. None of this prevented Early from ordering Gallegos to issue 

 7

 I take notice that in this area of the State of Texas it is apparently considered insulting to 

be compared to the President of the United States. 

36 FMSHRC Page 978
the written reprimand to Garza even in the face of evidence that Garza was not responsible for 

the damage. 

E. Garza’s Protected Activity 

Garza engaged in multiple activities that would generally fall within the term “protected 

activity.” Prior to his demotion in 2011, Garza was derided by Early for taking proper safety 

measures such as “scraping the wall.” Tr. 484. Garza made repeated requests for access to fall 

protection prior to his request to Scherer in July 2012. Tr. 446. Garza complained about the lack 

of scraping the wall to both Russell and Early. Tr. 212-13. Garza also commented to the MSHA 

inspector on August 29, 2012, that he did not have company issued fall protection. Tr. 464. 

Each of the above constitutes protected activity. 

F. Urbano Garcia’s Violation of Safety Protocol 

In or about May 2012, Urbano Garcia (“Garcia”), a worker in the electrical department, 

was filling the oil in the gearbox on top of the crusher and failed to wear protective fall gear.8

 

Tr. 603-05. This behavior was observed by witness Derek Henk (“Henk”). Tr. 604. Henk 

scolded Garcia for his transgressions of safety policy and reported the matter to supervisor 

Antonio Mosquedo (“Mosquedo”). Mosquedo gave Garcia a verbal warning for this offense. 

Tr. 300-01. No other disciplinary action was taken against Garcia. Tr. 301. In fact, Mosquedo 

testified that if Garcia was caught again, he would receive a three-day suspension. Id. 

Mosquedo said at no time was termination of Garcia ever considered for this transgression of 

safety policy. Id. Both Gallegos and Garza testified that Garcia’s actions on this date were 

consistent with how Mosquedo’s crew normally filled the oil in the gearbox. Tr. 195, 403.9 

G. Garza’s Termination 

On August 29, 2012, MSHA Inspector Lance Miller conducted an inspection of the 

Servtex Plant, accompanied by Scherer (the “inspection party”). Tr. 66, 68. During the course 

of that inspection at approximately 6:00 a.m., the inspection party arrived at the crusher at the 

base of the plant where Garza was assigned that day. Tr. 114. At the time they arrived, Garza 

 8

 The gearbox on the top of the crusher leaked oil and need to be refilled two or three 

times per week. Tr. 399. Garza reported this oil leak to Mosquedo on multiple occasions; 

however Mosquedo did not consider repair of the gearbox to be a priority. Tr. 400. The decision 

not to repair the gearbox required Garza to refill the oil. Tr. 400. Each time the oil had to be 

refilled, the crusher was out of operation for production purposes. Id. The parties dispute 

whether the maintenance of the faulty gearbox was the responsibility of Mosquedo’s 

maintenance unit, or the responsibility of the operator of the crusher. Tr. 123. For the purposes 

of this matter it is unnecessary to resolve that factual dispute. 

9

 In fact, Garza credibly testified that in July 2012, Early saw him on the crusher without 

a safety harness, and with the engine in idle (the same offenses that led to his termination), and 

that Early’s concern was not that Garza lacked safety equipment, but that Garza’s actions slowed 

production. Tr. 411-12. 

36 FMSHRC Page 979
was at the top of the crusher, placing oil in the gearbox, and was not wearing protective fall gear. 

Tr. 116-17, 223. In addition, an inspection of the equipment noted that the diesel engine that 

operates the electric motors on the crusher was in operation, though the clutch had been 

disengaged. Tr. 49, 124. Miller asked Garza what he was doing on the top of the crusher and 

Garza informed him that he was refilling oil. Tr. 123. Miller asked why he was not wearing any 

safety harness and Garza replied that he did not have a harness. Tr. 464. 

As the result of his observations, Miller issued two citations. The first citation cited the 

mine under 30 C.F.R. § 56.15005 for Garza’s failure to use protective gear and for the lack of 

guardrail protection on the top of the crusher. Resp. Exh. 6. The second cited the mine under 30 

C.F.R. § 56.12016 for Garza’s failure to lockout the diesel motor while performing maintenance. 

Resp. Exh. 7. 

After the inspection, Scherer met with Early and discussed the citations and Garza’s 

violations of safety protocol. Tr. 480. Early and Scherer then had an additional discussion with 

Bechly, and Bechly recommended that both Garza and his supervisor Gallegos be suspended 

pending an investigation into the safety violations. Tr. 85-86. Garza was informed that evening 

that he was suspended pending investigation. Tr. 82. In the course of that discussion, Garza 

repeatedly explained that he objected to having to refill the broken gearbox with oil on a regular 

basis, and that the gearbox was never repaired by Mosquedo’s maintenance team. Tr. 85, 397, 

399. Scherer testified that Garza also stated that Gallegos told him to fill the oil before the 

MSHA inspector arrived. Tr. 85. The “investigation” did not include any further discussion 

with Garza. Tr. 85. Garza was informed that evening that he was under suspension. Tr. 82. 

The next day, Early and Scherer spoke with Gallegos and inquired of his knowledge of 

whether Garza had been instructed to hurry the process of filing the gearbox with oil before the 

MSHA inspector arrived. Tr. 86. Gallegos denied that Garza had been so instructed and stated 

only that he told Garza to finish it before the trucks arrived. Tr. 86. Gallegos also admitted that 

his understanding of the lockout/tagout procedure would permit Garza to do exactly what he had 

done on the day of the inspection. Tr. 88-89. 

 

After the conversation with Gallegos, there was a conference call between Early, Bechly, 

Scherer, Richard Crowe, the area production manager, and Russell Ellis, Hanson’s south Texas 

safety manager. Tr. 89. The purpose of the call was to discuss the results of the “investigation” 

and to make a decision about the future of Garza and Gallegos. Tr. 90. While the parties on the 

call agreed that termination of Garza was proper, ultimately, it was Early’s call to terminate both 

Garza and Gallegos, overruling Scherer’s objection as to the termination of Gallegos. Tr. 55, 90. 

On August 31, 2012, Garza was told to report to the plant where he met with Scherer and 

Early. Tr. 94, 439. Early informed Garza that he was terminated. Tr. 439. Garza did not 

question Early but left the plant premises. Id. 

 

36 FMSHRC Page 980
IV. Discussion 

I begin by reviewing the Commission’s framework for analyzing a section 105(c) “mixed 

motive” discrimination complaint.10 This is no easy task. What at first glance appears to be an 

application of traditional McDonnell Douglas burden shifting is in fact and in application a much 

more complicated analysis that shifts burdens of persuasion from the employee to the employer, 

and, in the end, to both parties. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 

Under traditional McDonnell Douglas analysis, once a plaintiff establishes a prima facie case 

under Title VII, the burden of proof shifts to the employer to rebut the prima facie case. Id. at 

802-03. The employer’s burden is a burden of production not persuasion. Id. At all times, the 

burden of persuasion remains with the employee. Id. However, under Commission precedent, 

upon establishment of a prima facie case by the miner, the burden shifts to the operator to rebut 

the prima facie case by a preponderance of the evidence. Sec’y of Labor on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (Oct. 1980). Unlike McDonnell Douglas, 

the employer now has the burden of persuasion not production.11

Presumably, if the operator meets its burden and can provide sufficient evidence that it 

would have taken the adverse action based on a nondiscriminatory basis, there is nothing left to 

rebut. It is indisputable that a fact established by a preponderance of the evidence cannot be 

overturned by evidence that the fact was a pretext; otherwise it could not have been established 

in the first place. Under McDonnell Douglas, unlike under the Mine Act, a Judge does not find 

that an employer established his rebuttal by a preponderance of the evidence, but rather that it 

met its burden of production, leaving open the question of whether the proffered reason was 

pretextual, and keeping the burden of persuasion at all times with the employee. In my opinion, 

it is the adjustment of the traditional framework by the Commission that leads many Judges to 

fail to address pretext because the Commission’s altered Title VII framework does not easily 

invite such an analysis. In order to properly address the issue of pretext, the Commission 

precedent must be read to require that the Judge review pretext (burden of persuasion on 

employee) at the same time the Judge reviews the company’s affirmative defense (burden of 

persuasion on employer). See, e.g., Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 

1374 (Dec. 2000) (concurring opinion of Commissioner Beatty) (“complainant has a burden to 

produce evidence designed to refute the operator’s affirmative defense by showing that the 

 10 A “mixed motive” case exists “where it is found that both the miner’s protected 

activity and his unprotected activity motivated the adverse action[.]” Sec'y of Labor on behalf of 

Pendley v. Highland Mining Co., 34 FMSHRC 1919, 1923, n.3 (Aug. 2012). 

11 Judges sometimes face remand for failing to conduct a proper or thorough analysis of 

the operator’s proffered reason as pretextual. Turner v. Nat’l Cement Co. of California, 33 

FMSHRC 1059, 1076-77 (May 2011); Metz v. Carmeuse Lime, Inc., 34 FMSHRC 1820 (2012) 

(dissent argues that ALJ failed to adequately consider pretext). Under McDonnell Douglas, that 

pretext analysis is conducted when the employer meets its burden of production with a 

nondiscriminatory reason for the adverse action. Here, however, the operator’s burden is not 

production but persuasion. Thus, the operator must prove its case by a preponderance of the 

evidence. There lies the challenge for pretext analysis. See discussion infra pages 9-10 and 

accompanying notes. 

36 FMSHRC Page 981
affirmative defense offered by the operator is merely pretext and not the true reason for the 

adverse action.”) The most efficient way one can accomplish such a task is to clarify the section 

105(c) analysis. 

On rebuttal, an employer must establish either that: (1) the miner was not engaged in 

protected activity; or, (2) that the adverse action was not motivated in any part by the protected 

activity. Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 825 

n.20 (Apr. 1981). Such a successful determination on either prong precludes further review, 

including review on pretext.12 Id. If however, the operator cannot rebut the prima facie case, 

then the operator may assert an affirmative defense, which it must prove by a preponderance of 

the evidence.13 The operator must establish both that: (1) the discharge was also motivated by 

the miner’s unprotected activity, and (2) it would have taken the adverse action in any event for 

the unprotected activities alone. Nat’l Cement Co. of California, 33 FMSHRC at 1064. In the 

assertion of this affirmative defense, it is best to break down the framework a little further. 

To establish its affirmative defense, the company must first carry its burden of persuasion 

on the issue of whether the discharge was also motivated by the miner’s unprotected activity. If 

the company is unable to prove this element, it has failed to establish its affirmative defense and 

the employee is entitled to judgment in his or her favor. If, however, the operator meets this 

burden, the question now rises and falls on whether the operator can establish that it would have 

taken the adverse action in any event for the unprotected activities alone. 

In reviewing this second prong, I find that the suggestion of some Commission precedent 

regarding the order of proof presents a logical inconsistency. Looking to the operator to 

establish by a preponderance of the evidence that it would have taken the action in any event, 

then looking to rebut a fact already established by preponderance makes little rational sense. If 

the operator sufficiently determines by a preponderance of the evidence that it would have taken 

the action for the unprotected activities alone, then no pretext could possibly exist. The pretext 

to be established is that the proffered reason hides actual discriminatory animus. If the operator 

proves that it would have taken the action for the unprotected activity alone, it has proved that 

notwithstanding evidence of discriminatory animus the outcome remains the same. The 

employer acknowledges the existence of the discriminatory animus, but says it was not the 

ultimate factor in the decision. Thus, if that particular fact is established by a preponderance of 

the evidence, how can that objective finding also be pretextual? 

 12 Again, to state the obvious, successful rebuttal proves that pretext did not exist, thus 

analysis of pretext is unnecessary. Pretextual analysis is only relevant when considered during 

the employer’s affirmative defense. 

13 When an operator fails to rebut the prima facie case, the operator now faces a “mixed 

motive” case because the operator is contending that notwithstanding the discriminatory 

motivation it failed to rebut, there was an equally compelling nondiscriminatory motive 

represented by the unprotected activity, and that activity alone was sufficient to justify the 

adverse action. See supra note 10. 

36 FMSHRC Page 982
Rather, I believe the burden on the operator in the final prong of the two part test 

articulated by the Commission, and the ultimate burden of persuasion on the complainant to 

establish pretext, are not separate or distinct burdens but directly competing burdens. You 

cannot both find by a preponderance of the evidence that an employer would have taken the 

same action without the discriminatory motive, and find by a preponderance of the evidence that 

the opposite is also true. A pretext by definition is a finding that the proffered reason, here the 

finding that the operator would have fired the miner anyway, is not true, i.e., a pretext for 

discrimination. Black’s Law Dictionary (9th ed. 2009). This raises the question of how can a 

fact be established by a preponderance of the evidence and yet be untrue. That conundrum 

represents the logical inconsistency of the order of proof at this stage of a mixed motive case. 

By viewing the burdens as competing burdens, the Judge can remain consistent with 

Commission precedent to evaluate both parties’ respective cases, remain true to the burdens of 

persuasion on each party, but eliminate the logical inconsistency of conducting the review of 

each burden as though they were entirely unrelated. Accordingly, when reviewing the operator’s 

evidence that it would have taken the action in any event, the Judge must do so with an eye 

toward any evidence of pretext such an assertion raises. The Judge must evaluate the operator’s 

case not only reviewing the operator’s evidence but also looking at all the evidence presented by 

the employee that the proffered reason for the adverse action was pretextual. It is here that the 

Judge must determine either that the operator met its burden on the second prong, or that the 

employee has proved pretext by a preponderance of the evidence. As stated, these are directly 

competing burdens, which means that if one is true the other must be false. 

The Judge’s analysis then is to place the competing burdens on either end of a scale and 

weigh the evidence. At this stage, the Judge considers all evidence proffered by the employee of 

pretext, and weighs it against all evidence produced by the company that they would have taken 

the adverse action in any event.14 If the evidence weighs greater in one direction than another, 

then the scale is tipped to the party presenting that evidence. If the employer can establish that 

they would have taken the action for the unprotected activity alone, then logically pretext was 

not established. Likewise, if the employee establishes that the proffered reason is pretextual, 

then logic dictates the employer has failed to meet it burden of persuasion. The one thing cannot 

exist alongside the other; this is an either/or proposition. In my reading, prior Commission 

precedent has not explained this analysis in these terms, although I find that this is the intent of 

the Commission’s precedent, and is consistent with existing case law. Accordingly, this is the 

balance of competing interests that I adopt in deciding the matter before me under section 105(c). 

A. Complainant’s Prima Facie Case 

In order to establish a prima facie case of discrimination, Garza must prove that he was 

engaged in a protected activity and that “the adverse action complained of was motivated in any 

part by that activity.” Driessen v. New Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1988). The 

burden of proof to establish a prima facie case is less than the burden of persuasion under section 

 14 An employee’s prima facie case need not establish its elements by a preponderance of 

the evidence. Thus, it is necessary to review the employee’s evidence in total, to determine 

whether the employee has met its burden of persuasion on pretext. 

36 FMSHRC Page 983
105(c)(1). Nat’l Cement Co. of California, 33 FMSHRC at 1065. It is enough that Garza bring 

forth sufficient evidence in which I can infer retaliation. To assist in this process, the 

Commission has identified several indicia of discriminatory intent, including: (1) knowledge of 

the protected activity; (2) hostility toward the protected activity; (3) coincidence in time between 

the protected activity and the adverse action; and, (4) disparate treatment of the complainant. 

Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 

1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983). Often, direct evidence of 

motivation is not available. Thus, to establish motivation I must draw upon reasonable 

inferences from the facts of record. 

In this case, Garza’s requests for a safety harness, his actions to encourage safety 

activities that were criticized by Early including scraping the wall, and his statement to the 

MSHA inspector that he was not provided with fall protection constitute protected activity. 

Howard v. Cumberland River Coal Co., 32 FMSHRC 983, 988 (Aug. 2010) (anti-discrimination 

provision is to be interpreted expansively to effect purpose of safety of mines). Likewise, his 

allegations regarding Early’s conduct, including his repeated verbal assaults, Early’s decision to 

discipline Garza for an infraction just a month prior to his termination under questionable 

circumstances, a demotion a year earlier under equally questionable circumstances, the disparate 

treatment of Garza for the same offense committed by another employee, and Early’s general 

pattern of placing production over safety combine to establish evidence of animus. Sec’y of 

Labor on behalf of Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089-90 (Oct. 2009) 

(evidence of animus included supervisor “‘dogged’ him, swore at him, and assigned him more 

difficult and onerous tasks as compared to other” employees). 

Garza established that Early had knowledge of Garza’s safety complaints, including the 

repeated requests for a safety harness, and the activity of “scraping the walls,” both at the time 

Garza scraped the walls, and Garza’s subsequent complaints to Russell and Early of his safety 

concerns because of a failure to scrape the wall. Tr. 212-14, 387. Hanson did not rebut that 

knowledge during its rebuttal case.15 Also, Garza established that there was hostility to the 

protected activity of scraping the walls. Tr. 485-87. Further, the disparate treatment of Garza as 

compared to Garcia is undisputed and suggests ongoing hostility. While the timing of the 

protected activity of scraping the walls may be in the more distant past, it likely led to Garza’s 

demotion, and thus, was part of a pattern of continuing animus by Early against Garza. This 

 15 In its post-hearing brief, Hanson argues that Early’s knowledge of the safety 

complaints cannot be imputed to the company. However, that argument is not consistent with 

Commission precedent. Nat’l Cement Co. of California, 33 FMSHRC 1059; Metric 

Constructors, Inc., 6 FMSHRC 226 (Feb. 1984). Further, Hanson’s reliance on Metric and Nat’l 

Cement to support this argument is entirely misplaced. Neither case supports Hanson’s attempt 

to cleanse Early’s discriminatory motivations in a single conference call, and the weight of 

testimony from Hanson’s own witnesses place the responsibility of termination ultimately on 

Early. 

36 FMSHRC Page 984
pattern was further evidenced just weeks before Garza’s termination by the unjustified 

disciplinary action against Garza for the blown tire on the loader.16 

Although Scherer denied knowledge of the discussions between Garza and Miller on the 

date of the citation, given his close proximity to the site of the infraction, I find it unlikely that 

Scherer did not hear Garza tell the inspector he did not have a harness. Garza’s statement 

implied that the company had failed to provide him with proper safety protection. In the 

termination of the citation, there was discussion that “[t]he miner was instructed on the use of 

fall protection [when] there is a danger of falling.” Resp. Exh. 6. This discussion could only 

have occurred with Scherer at the time of the infraction, as the citation terminates just five 

minutes after it was issued.17 Id. Although Scherer denied any such conversation, the only 

person who would have had such a discussion at that time was Scherer. Thus, I find that Early 

was likely aware of Garza’s statement to the inspector through Scherer. This statement was 

protected activity that occurred just twenty-four hours before Garza was terminated. 

In summary, I find that Garza has demonstrated: (1) that Early was aware of his protected 

activity; (2) that Early exhibited hostility toward the protected activity; (3) that there exists a 

sufficient nexus between the protected activity and the discriminatory action based on the 

timelines cited herein; and, (4) that Garza was subjected to disparate treatment. Accordingly, 

based on the foregoing, I find that Garza established a prima facie case of discrimination in his 

termination from Hanson. 

B. Respondent’s Rebuttal of Complainant’s Prima Facie Case 

The mine operator may rebut the prima facie case by showing that: (1) the miner was not 

engaged in protected activity; or, (2) that the adverse action was not motivated in any part by the 

protected activity. Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 

803, 825 n.20 (Apr. 1981). Should the company fail to rebut the prima facie case by a 

preponderance of the evidence, it may assert an affirmative defense that establishes: (1) the 

discharge was also motivated by the miner’s unprotected activity, and (2) it would have taken the 

adverse action in any event for the unprotected activities alone. Nat’l Cement Co. of California, 

33 FMSHRC at 1064. 

 16 Although Gallegos did not identify the time period in which Garza made the 

complaints to Early and Russell regarding the need to scrape the wall, I infer that these 

complaints were made after Garza was demoted and assigned to the base of the plant when such 

a danger would be of particular concern to Garza. 

17 Scherer also denied telling the inspector that part of the termination would be the use of 

the Genie boom in future situations. Scherer testified that it was likely Mosquedo who so 

informed the inspector, but only Scherer was present with the inspector at 6:50 a.m. on the date 

of the infraction. Thus, it had to have been Scherer who explained to the inspector how the 

company intended to deal with preventing future infractions. 

36 FMSHRC Page 985
(1) Miner Was Not Engaged in Protected Activity 

Hanson argues in its post hearing brief, that none of the issues raised by Garza can be 

considered protected activity. The argument is supported largely by declarative sentences that 

contain no reference to Commission precedent. As I have found that the actions indeed 

constitute protected activity in Garza’s prima facie case, I found nothing in Hanson’s posthearing brief, or in the record, that sufficiently rebuts that finding by a preponderance of the 

evidence. Accordingly, Hanson has failed to meet its burden that no protected activity occurred. 

(2) The Adverse Action Was Not Motivated in Any Part by the 

Protected Activity 

Scherer denied any knowledge of Early’s mistreatment of Garza. On direct, Scherer 

testified that he had little contact with Garza prior to arriving at the mine. Tr. 17-18. However, 

on rebuttal, Scherer clarified that testimony to state that he did have contact with Garza 

sometime in 2011, that he observed Garza’s performance, and that he was very critical of that 

performance in an unnamed report that was not offered into evidence. Tr. 652-54. I found 

Scherer’s testimony was not persuasive on that issue. Likewise, Scherer’s professions of 

ignorance and his evasiveness on the questions of the circumstances of Early’s departure were 

difficult to believe given the level of responsibility placed upon him when he began working at 

the mine in July 2012. Tr. 16-17, 565-66. Bechly’s testimony of Scherer’s responsibilities at the 

plant certainly raised the question of how Scherer could not have known of the specific 

circumstances of Early’s departure when it was Scherer who was the “company insider” sent to 

observe and to document Early’s operation of the mine. Tr. 565-66. In fact, Bechly testified in 

detail to Scherer’s criticisms of Early’s management of the Servtex plant that ultimately led to 

the decision to terminate Early. Id. I infer that Scherer wanted to downplay Early’s termination, 

and the circumstances that led to that departure, because they might be viewed as assisting 

Garza’s discrimination case. As a result, I find that Scherer’s instinct to protect the company 

served to limit his overall credibility as a witness. 

Likewise, I find it inconceivable that Bechly, as a human resource professional, never 

insisted upon documentation or adherence to the progressive discipline policy, either for the 

Garza demotion in 2011, or at the time of his termination. Bechly also showed no curiosity as to 

whether Garza had engaged in protected activity prior to his termination, and seemed to exhibit a 

surprising lack of knowledge of the provisions of the Mine Act that offer protections to miners 

against retaliatory action by the mine. Bechly testified that he relied on Early’s and Scherer’s 

observations alone in making his recommendations for termination. However, to ignore Garza’s 

side of the story, and rely upon the opinion of a man who would be terminated for his poor 

operation of the plant only weeks later -- at least in part as the result of his mistreatment of 

employees -- raises the question of what level of analysis and thoughtful guidance Hanson 

human resources provided to its managers in this instance. Nevertheless, neither Scherer’s 

unlikely lack of knowledge of the circumstances of Early’s departure, nor Bechly’s odd lack of 

desire to see that a reasonable investigation of the facts of the termination was conducted, were 

factors in my decision. 

36 FMSHRC Page 986
The issue here is neither the motivation of Scherer, who was not the plant manager at the 

time of Garza’s termination, nor that of Bechly in his role as human resource director. Rather, 

the factual circumstances of this termination involve the retaliatory conduct of Early. If Early 

acted with animus in retaliation for protected activity, then Scherer’s and Bechly’s belief that this 

incident was a termination offense has little probative value. Nat’l Cement Co. of California, 33 

FMSHRC at 1069 (lack of knowledge of protected activity or discriminatory animus by others 

does not remove the “taint” of retaliation.) The bad faith of Early is imputed to the company and 

cannot be sanitized by Scherer’s or Bechly’s lack of knowledge of Early’s motivation.18 ‘“An 

operator may not escape responsibility by pleading ignorance due to the division of company 

personnel functions.”’ Id. at 1067 (citing Metric Constructors, Inc., 6 FMSHRC at 230 n.4). 

As discussed previously, the animus toward Garza by Early was palpable. The 

circumstances of the demotion that occurred about a year prior to the termination raise questions 

about whether the demotion itself was retaliatory, however, that question is not directly before 

me. It does, however, point to a long history of animus by Early against Garza. There is no 

question that Early disliked Garza. Early’s treatment of Garza as a subordinate was abysmal. 

Likewise, Early’s history of lax oversight of safety in favor of increased production is well 

established. Even company officials had to admit that Early was not a pleasant person to work 

with, and that his safety record left something to be desired. Tr. 55. 

Also, the decision to terminate for failure to follow the lockout/tagout procedure raises 

questions. Garza’s supervisor was under the apparently mistaken belief that lockout/tagout of 

the diesel motor was not necessary if the clutch was disengaged. Tr. 88-89. Both Garza and 

Gallegos testified credibly that this procedure was accepted practice at the plant notwithstanding 

company policy to the contrary. Thus, the decision to terminate Garza for offenses that were, at 

least during Early’s regime as plant manager, somewhat common safety shortcuts, strikes me as 

an overreaction. Nevertheless, I do not substitute my judgment for that of company 

management. Only if Garza can establish that the decision to terminate was the result of his 

protected activity is the management decision subject to reversal here. Driessen v. New 

Goldfields, Inc., 20 FMSHRC at 328. 

Garza’s undisputed testimony that Early got very angry at earlier safety concerns raised 

by Garza certainly provides evidence that Early’s animus toward Garza was long held and 

continuing. The incident involving scraping the wall was clearly protected activity by Garza that 

was met with furious indignation by Early for its interference with production. Also, Garza 

testified credibly that he made multiple requests for safety equipment and until Scherer placed 

the order for his harness, his prior requests had been ignored. A request for safety equipment is a 

protected activity. Sec’y of Labor on behalf of Bailey v. Arkansas-Carbona Company, 3 

FMSHRC 2313, 2318 (Oct. 1981) (ALJ). Thus, Early’s late conversion to safety watchdog, after 

the arrival of Scherer on the scene, strikes me as more self-serving than a rational, dispassionate 

review of Garza’s conduct on August 29, 2012. I believe Early was more likely driven in part by 

 18 However, the company can still prove its case that it would have taken the adverse 

action in any event. This is a different analysis than the analysis under the prima facie case that 

the adverse action was motivated, at least in part, by the discriminatory animus. On rebuttal, the 

company must refute the prima facie finding of animus. In its affirmative defense, it must prove 

that while animus was present, it would have taken the action in any event. 

36 FMSHRC Page 987
a desire to keep his job, which was clearly in jeopardy after Scherer arrived at the mine. Early 

no doubt understood that his pressure on production at the expense of safety was not well 

received by the company. His mistreatment of his employees was also apparently well 

understood by Hanson management during this period. Tr. 206-07. Indeed, Early’s eventual 

termination several weeks after Garza’s dismissal certainly confirms that Early’s operation of the 

mine was less than textbook. 

Further, the issuance of the write-up against Garza for the blown tire incident, when it 

was apparent that Garza had nothing to do with the abuse of the equipment, is evidence that 

Early was after Garza as recently as just a few weeks before the termination. The circumstances 

of Garza’s demotion, following complaints and concerns regarding safety issues, and Early’s 

history of verbally abusive treatment of Garza, leads to the reasonable conclusion that Early’s 

motivation on August 29, 2012, was at least in part in retaliation for Garza’s previous protected 

activity. Early had Garza in his sights for at least the prior two years, and likely perceived Garza 

as an ongoing irritant in his efforts to maximize production. If Early had objections regarding 

Garza’s performance as an employee, Hanson offered no evidence to support those criticisms in 

the way of performance appraisals, human resource documents, or other reports. The only 

corrective action form submitted by the company tended to prove further animus toward Garza 

by Early, rather than support any concern with Garza’s performance on the job. 

In addition, Garza also told the inspector on August 29, 2012, that the reason he was on 

the crusher without a safety harness was that he did not have one. That statement to the 

inspector was also protected activity, and would tend to discredit Early, who was already on 

shaky ground for his lax safety practices at the mine. Thus, to bolster his safety credentials in the 

presence of Hanson upper management, Early advocated for the termination of both Garza and 

Gallegos in an apparent effort to portray himself as a safety conscious manager. In fact, even 

Scherer counseled against the termination of Gallegos, placing Early in the fortuitous position of 

appearing to Hanson management to hold his employees to higher safety standards than might 

Scherer, when the record reflects that safety was never a priority for Early prior to August 29, 

2012. Thus, I find that Early’s discriminatory animus toward Garza was at least in part the result 

of Garza’s protected activity described herein and Hanson has failed to meet its burden to rebut 

Garza’s prima facie case. 

C. Respondent’s Affirmative Defense 

If an operator is unable to rebut a prima facie case of discrimination, it may nevertheless 

prove an affirmative defense by showing that: (1) the discharge was also motivated by the 

miner’s unprotected activity; and, (2) it would have taken the adverse action in any event for the 

unprotected activities alone. This affirmative defense, termed the Pasula-Robinette test, must be 

established by the employer by a preponderance of the evidence. Robinette, 3 FMSHRC 803, 

817-818; Pasula, 2 FMSHRC 2786. Having determined that the adverse action was motived at 

least in part by discriminatory animus, the company bears the burden of persuasion that the 

discharge was also motivated by unprotected activity. 

The Commission has explained that an affirmative defense should not be examined 

superficially or approved automatically once proffered. Nat’l Cement Co. of California, 33 

36 FMSHRC Page 988
FMSHRC at 1072 (citing Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982)). 

Rather, in reviewing an affirmative defense, the judge must determine whether it is credible and, 

if so, whether it would have motivated the particular operator, as claimed. Id., citing Bradley, 4 

FMSHRC at 993. Pretext may be found where the asserted justification is weak, implausible, or 

out of line with the operator’s normal business practices such that it was seized upon to cloak 

discriminatory motive. Chacon, 3 FMSHRC at 2516; see also Nat’l Cement Co. of California, 

33 FMSHRC at 1072, citing Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 12 

FMSHRC 1521, 1534 (Aug. 1990) (citing Haro, 4 FMSHRC at 1937-38). As discussed above, 

the parties share equal and competing burdens at this stage. While the company must prove its 

affirmative defense by a preponderance of the evidence, the miner must establish pretext in the 

assertion of the proffered justification by the same burden. Where two parties carry equal and 

competing burdens, it is up to the Judge to determine by a preponderance of the evidence which 

party has met its burden. 

(1) Was the Adverse Action Also Motivated by Unprotected Activity 

Garza’s breach of safety protocols was the “trigger event” for his termination. The 

operator cited no other basis for the action, and the fact that Garza violated the safety protocols 

on the date in question is not in dispute. Thus, notwithstanding the findings of animus against 

Garza by Early, and the establishment of a prima facie case, I find Hanson has brought forth 

sufficient evidence to establish that the adverse action was also motivated by unprotected 

activity.19 

(2) Would Respondent Take the Action for the Unprotected Activity 

Alone 

In this analysis, I must look to the evidence proffered by the company to support its 

argument that it would have taken the adverse action against Garza for the unprotected activities 

alone. The burden rests with Hanson to prove this prong by a preponderance of the evidence. At 

the same time, I do not view Hanson’s evidence in a vacuum. Rather, I must weigh the evidence 

Hanson presents against any evidence put forth by Garza that the proffered reason for his 

discharge, in this case violation of safety protocols, is a pretext. First I review the evidence 

submitted by Hanson. 

(a) Testimony of Scherer 

Scherer testified that he was involved in the decision to terminate Garza. Tr. 52-53. In 

that testimony Scherer admitted that he has observed employees working in positions similar to 

Garza without fall protection. Tr. 52. Scherer admitted that not all employees will be terminated 

for such an offense. Id. He indicated that when he witnessed an employee violating such a 

safety protocol, he would counsel the employee immediately, and then determine later whether 

 19 Accordingly, this is a “mixed motive” case. Sec'y of Labor, Mine Safety & Health 

Admin. on Behalf of Lawrence L. Pendley, 34 FMSHRC 1919, 1923, n.3 (Aug. 2012). See supra

notes 10, 13. 

36 FMSHRC Page 989
disciplinary action was necessary. Tr. 53. Thus, the lack of fall gear alone does not appear to be 

a termination offense. 

Scherer was particularly critical of Early’s management of the facility, citing the lax 

safety culture that was present, and the lack of enforcement of safety rules under Early’s tenure. 

Tr. 54-55. Included among the areas where Early was lax in safety management was following 

the lockout/tagout procedure. Tr. 55-56. He also testified to an employee who violated the 

lockout/tagout procedure. Tr. 56. That employee apparently received a three day suspension but 

was not terminated. Tr. 188-89. Thus, I find that failure to follow the lockout/tagout procedure 

is not a termination offense at Servtex. 

Scherer justified the harsh treatment of Garza based upon the fact that Garza was a 

former supervisor. He testified that supervisors are held to a higher standard. Tr. 98, 130. 

Scherer explicitly denied that Garza’s termination had anything to do with protected activity. Tr. 

88. Nevertheless, Scherer admits that it was Early who terminated Garza. Tr. 55.20

For his part Scherer could not identify any other Servtex employees, or employees of 

Hanson who were terminated for similar offenses. He stated that if the offense had been one or 

the other, the likely discipline would have been a three day suspension. Tr. 188-89. However, 

Scherer felt the combination of the two offenses warranted discharge. While he denied the 

presence of the inspector or the citations resulted in the harsher discipline, he stated that he 

would have disciplined Garza exactly the same way had it been his decision alone. Tr. 170 

(b) Testimony of Bechly 

Hanson’s other evidence that it would have taken the same adverse action in any event 

was presented through the testimony of Bechly. In his position, Bechly could be expected to 

know of any number of situations in which similar behavior resulted in termination. However, 

his testimony did not shed much light on that effort. 

Bechly testified to supervisors at other facilities who were terminated. In that discussion, 

he mentions two (non-supervisory) employees who were terminated “for failure to 

lockout/tagout after having been counseled and talked to substantially about that[.]” Tr. 521. He 

also testified to a “lead person, who created an unsafe situation in his work environment” who 

was fired. Tr. 521-22. Bechly offered no documentation to support these prior terminations, 

although, as human resources director one could assume that such documentation was readily 

 20 Respondent’s post-hearing brief argues that the termination was a group activity, and 

not one man’s decision. However, the testimony cited above establishes that Early was the 

decision maker, and the others on the call simply agreed with the decision. While the others may 

not have had knowledge of the protected activity, or Early’s discriminatory motive, that lack of 

knowledge does not excuse Hanson its liability for an unlawful termination. Nat’l Cement Co. of 

California, 33 FMSHRC at 1069 (lack of knowledge of protected activity or discriminatory 

animus by others does not remove the “taint” of retaliation). 

36 FMSHRC Page 990
available to him. As such, this hearsay evidence from Bechly is all the company produced to 

establish similar adverse actions at other facilities.21 

Bechly testified that both Scherer and Early were asked if there were any other instances 

of others behaving in the same manner and he was told no. Tr. 524. This contradicts Scherer’s 

own experience of both employees lacking fall gear and employees failing to follow the 

lockout/tagout procedures. Bechly further denied being aware of any allegations that other 

supervisors at Servtex may have allowed employees to engage in similar violations, but indicated 

that information may have had an impact on his decision in Garza’s case. Tr. 522-23. “If it 

happened and we had not acted in the same manner, we would be asking questions why are we 

doing this different here.” Id. 

D. Complainant’s Evidence of Pretext 

In Nat’l Cement Co. of California, the Commission analyzed the issue of pretext in the 

context of other federal discrimination statutes, and concluded that a complainant may establish 

that an operator’s explanation is not credible by demonstrating either: (1) that the proffered 

reason has no basis in fact; (2) that the proffered reason actually did not motivate the adverse 

action; or (3) that the proffered reason was insufficient to motivate the adverse action. Nat’l 

Cement Co. of California, 33 FMSHRC, at 1073, citing Madden v. Chattanooga City Wide 

Service Dep't., 549 F.3d 666, 675 (6th Cir. 2008) (citing Manzer v. Diamond Shamrock 

Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994)), overruled on other grounds, Geiger v. 

Tower Automotive, 579 F.3d 614 (6th Cir. 2009) (emphasis in original)); McNabola v. Chicago 

Transit Auth., 10 F.3d 501, 513 (7th Cir. 1993). The first type of showing consists of evidence 

that the proffered basis for the complainant’s discharge never happened, i.e., that it was factually 

false or did not exist. Id. The third type of showing generally consists of evidence that other 

miners were not fired even though they engaged in substantially similar conduct that allegedly 

motivated the discharge of complainant. Both types of rebuttal are direct attacks on the 

credibility of the operator’s proffered motivation for firing the miner. Id. Unlike the first and 

third discussed above, the second showing “is of an entirely different ilk.” Manzer v. Diamond 

Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994). 

There, the plaintiff admits the factual basis underlying the employer’s proffered 

explanation and further admits that such conduct could motivate dismissal. The 

plaintiff's attack on the credibility of the proffered explanation is, instead, an 

indirect one. In such cases, the plaintiff attempts to indict the credibility of his 

employer’s explanation by showing circumstances which tend to prove that an 

illegal motivation was more likely than that offered by the defendant. In other 

words, the plaintiff argues that the sheer weight of the circumstantial evidence of 

discrimination makes it “more likely than not” that the employer’s explanation is 

a pretext, or coverup. Id. 

 21 In addition to the lack of documentation, the company did not produce the plant 

managers involved in these decisions, thus, I had no ability to hear testimony from the direct 

participants in these matters to determine whether they were relevant to the issues raised in this 

case. 

36 FMSHRC Page 991
One of the more obvious challenges for Respondent in this case is that the decision to 

terminate Garza is not consistent with the suggested punishment under the progressive discipline 

policy for these transgressions. Under the progressive discipline policy, the most likely penalty 

for Garza’s infractions would be a three-day suspension, or perhaps even two three day 

suspensions, one for each transgression. Resp. Exh. 8. Although Garza’s behavior resulted in 

two citations to the company, given the lesser treatment for the same offense involving other 

miners, and the fact that Early observed Garza on the crusher without a harness on prior 

occasions, the punishment in this instance does not seem to fit the crime. Thus, when an 

individual is singled out for harsher treatment than similarly situated employees, we look to the 

circumstances that might lead to the decision to do so. Nat’l Cement Co. of California, 33 

FMSHRC at 1073. 

Hanson argues that because Garza’s infractions were of two major safety violations, 

termination was appropriate under the circumstances notwithstanding the progressive discipline 

policy. The argument is not entirely without merit. Certainly the progressive discipline policy 

allows for the company to ignore its own guidelines whenever it deems it appropriate.22 In this 

case, the decision to deviate from the company policy raises some concerns regarding the 

company’s motivations. A company’s failure to follow its own policies can be evidence of 

pretext. See Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 727 (7th Cir. 2005) (failure to 

follow company’s own procedures may be evidence of pretext). Yet, I do not believe that this 

deviation from the progressive discipline policy itself was sufficient evidence of pretext. I credit 

Bechly’s testimony on the application of the progressive discipline policy in this case. Thus, I do 

not rely upon Hanson’s uneven application of the progressive discipline policy to establish 

pretext.23

However, I do find it difficult to reconcile the disparate treatment that occurred with 

respect to Garcia for the same violation that led, in part, to Garza’s termination. Chacon, 3 

FMSHRC at 2512 (pretext may be established by disparate treatment).24 One obvious difference 

between Garza’s transgression and Garcia’s transgression was the presence of the MSHA 

inspector. Another is Early’s well documented longtime animus toward Garza. It strikes me as 

incredulous to suggest that the offense for which Hanson strongly argues is part of the reason it 

had little choice but to terminate Garza was worthy of little more than a verbal warning to 

Garcia. If nothing else, it is clear evidence that enforcement of safety violations at the plant 

under Early’s regime was haphazard and random. If the particular safety violation of which 

 22 Of course, a progressive discipline policy that permits the company to ignore the 

progressive discipline policy is not much of a progressive discipline policy at all. 

23 I also find that given Garza’s admission of the facts that establish that he failed to 

follow company policy regarding safety on the date of his termination, Garza clearly cannot 

establish that the proffered reason has no basis in fact. 

24 This attack on the employer’s proffered reason addresses the third prong referenced in 

Nat’l Cement Co. of California. 

 

36 FMSHRC Page 992
Hanson contends is so egregious that termination must ensue, then one can assume that message 

must have been clearly sent to all Servtex supervisors to ensure standard and proper 

enforcement. Yet, in his testimony Mosquedo seemed nonchalant about the lack of safety 

equipment when Garcia was the violator. Thus, if strict companywide enforcement was the 

policy, as Scherer would have us believe, it seems to have escaped Mosquedo entirely. 

More likely, the inference I draw from this evidence is that the lax enforcement of safety 

violations as testified to by both Gallegos and Garza was standard procedure under Early’s 

undistinguished tenure. Scherer confirms that Early created a culture where lax enforcement of 

safety was the norm. Tr. 55. This evidence leads me to the conclusion that Mosquedo did not 

harshly discipline Garcia for this particular transgression because it was much more 

commonplace than the company cares to admit in this proceeding.25 While the parties all 

acknowledge that working on the crusher without safety equipment is wrong, and violates 

company safety policy as well as MSHA regulations, the message Early sent to his supervisors 

was that such violations should not be enforced if they interfere with production. Thus, I find 

that on the date that Garza was on the crusher, in clear violation of safety protocol, he was 

following the standard level of mine safety in the Servtex plant, and complying with the 

unwritten policy of the Servtex plant to value production over safety.26

I note that safety protocols and regulations are not present for the convenience of 

management to enforce as they see fit, or to use as a tool to discipline disfavored employees, or 

as some expedient defense to deflect attention from a pattern of poor safety compliance at a 

particular facility. Early created an environment of bullying employees who he perceived 

criticized his lax safety enforcement, and his policy of placing production over safety at the risk 

of his employees was well documented. His sudden conversion to zero tolerance for safety 

infractions on August 29, 2012, is difficult to accept as credible. The disparate treatment of 

Garza in this case is evidence of pretext. 

As a basis to defend the disparate treatment of Garza, Hanson repeatedly noted that Garza 

was a former supervisor, and taught training classes, and thus should be held to a higher 

standard. Tr. 98, 130-31; Resp. Post-hearing Brief at 1. This argument conveniently ignores the 

fact that the company had demoted Garza from supervisory position a year earlier, under 

somewhat questionable circumstances.27 Holding Garza to the higher standard of supervisor a 

25 In fact, Gallegos credibly testified that it was normal procedure for individuals to 

access the top of the crusher without fall protection. Tr. 214. 

26 Garza credibly testified that in July 2012, Early saw him on the crusher without a 

safety harness, and with the engine in idle, and that Early’s concern was not that Garza lacked 

safety equipment, but that Garza’s actions slowed production. Tr. 411-12. This incident is 

further evidence of Early’s desire to place production over safety, and reinforces the notion that 

Early’s safety concerns on August 29, 2012, were pretextual. See supra note 9. 

27 On rebuttal, Scherer testified as to a report not offered into evidence that was critical of

Garza’s performance as supervisor. I did not find the testimony helpful as it was not 

accompanied by any record of these alleged criticisms of Garza’s performance. If these records

(...continued)

36 FMSHRC Page 993
year after demoting him to a lesser position simply does not pass the smell test. Garza was not a 

supervisor, and thus, cannot be argued to be held to any higher standard of safety at the plant 

than any other employee, including Garcia. The company made the decision to treat Garza as 

less than a supervisor when they demoted him. It cannot be a post-hoc justification that his prior 

service as supervisor now warrants a higher standard. I completely reject this attempt by the 

company to bootstrap a higher standard on the same employee they demoted so cavalierly a year 

earlier.28

The company also went to great lengths to prove that suitable protective gear was readily 

available to Garza. Tr. 134, 160, 240, 606. The gear was maintained in the offices in the upper 

part of the mine, while Garza operated at the base of the mine. Hanson argues that Garza simply 

needed to drop by any of the offices to pick up his safety gear at the beginning of the shift. I 

found this line of testimony to be of little value. There is no factual dispute that Garza violated 

company policy by standing on top of the crusher without protective fall gear. Based on this 

testimony, I could also infer that if the company were so concerned about the use of fall 

protection, they should have kept the fall protection close to the crusher for easy access, which 

they admit they did not. However, whether the fall gear was sitting on the ground in front of 

Garza, or was back in an office at the top of the mine, is of little consequence here, as the fact of 

the violation is not in dispute. The issue is whether the company’s proffered reason for 

termination was a pretext. 

E. Weighing Complainant’s Burden versus Respondent’s Burden 

In the absence of Early’s testimony, Hanson was unable to refute the allegations of 

Early’s misconduct, or his very clear animus toward Garza in any meaningful way. Thus, 

Hanson could not rebut Garza’s prima facie case establishing animus. Hanson was further 

unable to bring forth evidence to deny that Garza had engaged in protected activity, and thus was 

also unable to refute that portion of Garza’s prima facie case. Thus, having failed to rebut the 

prima facie case, Hanson must establish its affirmative defense to relieve liability for Early’s 

discriminatory conduct. 

In doing so, Hanson must establish that it would have taken the action based solely upon 

the unprotected activity. I find that Bechly’s testimony of other miners who were terminated for 

similar offenses was hearsay and did not rise to the level of reliability necessary to meet the 

company’s burden. He offered no documents of these terminations to determine whether the 

27(...continued)

were the basis for Garza’s demotion, I find it unusual they were not part of the record 

for Bechly’s review, or part of the personnel file for Garza. As such, that testimony was given 

little weight. See supra note 4. 

28 I likewise reject the argument that Garza’s service on the safety committee somehow 

transforms his transgression into a termination offense. Service on the safety committee in a 

facility that placed so little emphasis on safety cannot be perceived as anything other than a 

disingenuous post-hoc justification for termination. 

36 FMSHRC Page 994
circumstances were, in fact, similar. The absence of that documentation left Bechly’s testimony, 

and to some extent Scherer’s testimony, as the only evidence proffered by Hanson that it would 

have taken the adverse action in any event.29 

Hanson’s affirmative defense was further undermined by the failure of Servtex 

management to take any disciplinary action against Garcia when he engaged in the same 

misconduct for his failure to wear protective gear while adding oil to the gearbox on the top of 

the crusher. As that single offense barely merited a verbal warning in Garcia’s case, Hanson was 

left to prove either that Garza’s failure to do the proper lockout/tagout procedure was a 

termination offense in and of itself (when its own progressive discipline policy as well as prior 

actions call for a three day suspension), or that the unique combination of the two safety offenses 

justified termination. 

Garza was a first time offender, according to company records, for both offenses. Prior 

history at the plant establishes that being on top of the crusher without fall gear was not 

considered a serious offense at Servtex, notwithstanding company policy to the contrary. If it 

were, Mosquedo would have strongly disciplined Garcia for the offense, which occurred just a 

month or two before Garza’s termination. In the face of that evidence, Hanson would have to 

prove that the lack of protective gear combined with the failure to follow the lockout/tagout 

procedure demands termination. Yet, given the lax safety environment at Servtex during Early’s 

tenure, and the testimony from Garza’s supervisor that even he believed Garza had followed 

proper protocol with respect to the lockout/tagout procedure, Hanson simply cannot meet its 

burden that such behavior would have resulted in termination of this employee absent the taint of 

Early’s discriminatory animus. 

Simply put, Hanson failed to demonstrate by a preponderance of the evidence that the 

combination of both offenses was a termination offense. Scherer’s testimony inferred that if in 

the position of Plant Manager at the time of Garza’s offense, he might have instituted a more 

strict record of compliance with safety standards than did Early. However, Scherer was not the 

plant manager at the time of the termination, thus, his testimony of what he considered a 

termination offense or how he would have handled a similar situation is not definitive. Hanson 

offered no evidence of any individual at the Servtex plant fired for similar violative behavior in

the recent past. I find the evidence presented by Bechly of similar terminations was not 

persuasive and was not supported by any documentary evidence (though such documentary 

evidence was presumably available to Hanson). I further note that none of the anecdotes offered 

of terminations for similar behavior occurred at the Servtex plant. In the absence of supporting

documentary evidence of past termination actions for similar offenses that might tend to support 

29 The progressive discipline policy was not helpful to Hanson in this case. It did not 

specify or require termination when a miner is faced with two or more allegations of safety 

violations. Thus, reliance on that policy to satisfy the burden was not persuasive. 

36 FMSHRC Page 995
Hanson’s affirmative defense, I find Hanson has failed to establish its burden by a preponderance 

of the evidence.30 

A complainant may demonstrate pretext where the asserted justification is weak, 

implausible, or out of line with the operator’s normal business practices such that it was seized 

upon to cloak discriminatory motive. Nat’l Cement Co. of California, 33 FMSHRC at 1072; 

Chacon, 3 FMSHRC at 2516. Accordingly, after carefully weighing all of the evidence 

presented by both parties, I find that Garza has established by a preponderance of the evidence 

that the proffered reason for the termination was pretextual. In applying the National Cement 

tests as guidance, I find that that the proffered reason was insufficient to motivate the adverse 

action. I find persuasive the evidence that Garcia was treated differently than Garza for a similar 

infraction, as well as the company’s inability to provide sufficient documentation to prove 

similar adverse actions. I also find that the evidence of discriminatory animus and the culture of 

indifference to safety violations weigh in favor of pretext. Given lax enforcement of safety 

violations at the Servtex plant, I find that the termination of Garza was not in line with the 

operator’s normal business practices. Thus, the weight of evidence in this case lies in favor of a 

finding that the termination was pretextual. 

In the end, it is clear that with Early at the helm, the lax safety environment at Servtex 

permitted individuals to violate safety protocols, often without punishment. In fact, it could be 

inferred from the record that such violations were encouraged when necessary so as not to inhibit 

production. The preponderance of the evidence establishes that this lax safety environment 

prevailed at Servtex throughout the period in question here. Although the company did take 

corrective action after the fact to improve the safety environment when it terminated Early, that 

post-termination corrective action did nothing to alleviate the situation that existed on the day 

that Early terminated Garza. 

On August 29, 2012, Servtex was a plant in trouble. Early had proven himself to be an 

incompetent manager, and ongoing lax enforcement of safety violations invited MSHA’s 

citations on that day. For that, Hanson had no one to blame but itself. The termination of Garza 

purporting to be for his breach of safety protocols served as a convenient scapegoat for Early’s 

mismanagement of the facility. It was not, however, representative of normal business 

operations at Servtex, nor did it remove the taint of Early’s discriminatory animus. Accordingly, 

Hanson has failed to meet its burden on its affirmative defense and Garza is entitled to judgment 

in his favor. 

 

V. Conclusion 

Garza’s termination was motivated, at least in part, by Early’s discriminatory animus 

toward Garza based upon earlier, documented protected activity, and was evidenced by a wellestablished pattern of animosity toward Garza by Early beginning at least with the demotion in 

 30 As the parties maintain competing burdens, this finding logically means that pretext is 

established. However, an analysis of Garza’s evidence of pretext is required to satisfy the 

Commission’s requirements for the record, and to demonstrate how competing burdens demand 

competing analysis. 

36 FMSHRC Page 996
2011, and concluding with his termination. Although aware of Early’s shortcomings, Hanson 

management chose to ignore what was occurring at the plant on a daily basis, and made a 

decision in a vacuum to terminate Garza without the benefit of an investigation into the 

circumstances that led to Garza’s departure from safety protocol. It did so at its peril under the 

Mine Act. See Merit Contructors, Inc., 6 FMSHRC at 230 (precipitous discipline without proper 

investigation is done at the mine’s own legal risk). Accordingly, I find that Garza has 

established a prima facie case under section 105(c), and that Hanson failed to rebut that prima 

facie case, either by establishing that the protected activity did not occur, or by establishing that 

the company would have taken the adverse action in any event for the unprotected activities 

alone. In so finding, I also find that Garza established pretext by a preponderance of the 

evidence. 

ORDER

 Manuel Garza’s discrimination complaint under section 105(c)(3) is GRANTED. 

 It is ORDERED that Garza be reinstated immediately to his former position as leadman 

at Hanson’s Servtex facility with an equal or greater rate of pay. 

It is further ORDERED that Hanson shall pay Garza backpay, interest, and full benefits 

from the date of termination, and reinstate such seniority as he is entitled as though no action had 

been taken against him. 

It is further ORDERED that Hanson shall also pay to Garza his reasonable attorney’s 

fees, costs, and expenses associated with this complaint. 

 It is further ORDERED that Hanson shall EXPUNGE from its personnel records any 

reference to Garza’s termination on August 31, 2012, the circumstances surrounding his 

termination, and this discrimination action. 

 It is further ORDERED that Hanson shall post a copy of this Decision on Liability and 

Final Order at all of its mining facilities, placed in conspicuous, unobstructed places where 

notices to employees are customarily posted, for a period of 60 days, together with a posting by 

Hanson at such properties that it will not violate the Mine Act. 

 

36 FMSHRC Page 997
PENDING A FINAL ORDER

 

The judge retains jurisdiction of this proceeding pending the issuance of a final order 

granting relief. The parties are ORDERED to work together to determine the amount of back 

pay, interest, and attorney’s fees to which Garza is entitled, and to jointly submit to this Court 

not later than thirty days from receipt of this Decision, a stipulation as to the proposed award of 

damages, together with specifics on the calculation of the damages. Such stipulation will not 

preclude Respondent's rights to seek review of this Decision. I will retain jurisdiction on this 

case until receipt of that joint report and issuance of a Final Order and this Decision shall not 

become final until issuance of my Final Order. 

If the parties are unable to come to agreement within thirty days, they shall notify me in 

writing, and I will schedule a further proceeding limited to the issue of damages at a time in the 

near future. 

Following issuance of the Final Order, this case will be referred to MSHA for assessment 

of a civil penalty. 29 C.F.R. § 2700.44(b). 

 /s/ James G. Gilbert 

James G. Gilbert 

Administrative Law Judge 

Distribution (Certified Mail) 

Mark A. Sanchez, Esq., Gale, Wilson, and Sanchez, P.L.L.C. 115 East Travis, Floor 19, San 

Antonio, Texas 78205 

William K. Doran, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 1909 K Street NW, 

Suite 1000, Washington, D.C.20006

36 FMSHRC Page 998
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th St., Suite 443 

Denver, CO 80202-2500 

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

 

 April 16, 2014 

 

AMENDED DECISION AND ORDER

Appearances: Ryan Pardue, Office of the Solicitor, U.S. Department of Labor 

1999 Broadway, Suite 800, Denver, CO 80202 for Petitioner 

Lauren Polk, Office of the Solicitor, U.S. Department of Labor 

1999 Broadway, Suite 800, Denver, CO 80202 for Petitioner 

 Arthur Wolfson, Jackson Kelly, 3 Gateway Center, Suite 1500, 

401 Liberty Ave., Pittsburgh, PA 15222 for Respondent 

Before: Judge Simonton 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

 

 

 v. 

BIG RIDGE, INC., 

 Respondent. 

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 CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2013-66 

A.C. No. 11-03054-301718 

Docket No. LAKE 2012-506 

A.C. No. 11-03054-284471 

Docket No. LAKE 2013-251 

A.C. No. 11-03054-309969-01 

Docket No. LAKE 2013-252 

A.C. No. 11-03054-309969-02 

Docket No. LAKE 2013-307 

A.C. No. 11-03054-312677 

Docket No. LAKE 2012-896 

A.C. No. 11-03054-298858 

Mine: Willow Lake Portal 

36 FMSHRC Page 999
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 Big Ridge, Inc. at 

its Willow Lake Portal mine, pursuant to sections 105 and 110 of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act” or “Act”). The cases include six 

separate dockets that originally included 33 contested violations with a total proposed penalty of 

$801,018.00. The parties settled all but eight of these contested violations prior to hearing. The 

parties presented testimony and documentary evidence at the hearing held in Benton, Illinois 

beginning December 3, 2013. 

II. BACKGROUND 

 

Big Ridge, Inc. (“Big Ridge”) operates an underground bituminous coal mine, the 

Willow Lake Portal mine (the “mine”) in Equality, Illinois. The mine is subject to regular 

inspections by the Secretary’s Mine Safety and Health Administration (“MSHA”) pursuant to 

section 103(a) of the Act. 30 U.S.C. § 813(a). The parties stipulated that Big Ridge, Inc. is the 

operator of the mine and that its operations affect interstate commerce and it is subject to the 

jurisdiction of the Mine Act. Tr. 9. 

 At hearing, the Secretary presented testimony by MSHA Inspectors Chad Lampley, Larry 

Morris, Eddie Kane, Scott Lee, and Dean Cripps. I have organized my findings by individual 

docket and detailed my final ruling for each citation within its respective subsection. For the 

eight citations contested at hearing, the Secretary has assessed a combined monetary penalty of 

$316,142.00.

The Secretary designated the majority of these contested citations as “Significant & 

Substantial” (S & S) violations that also constituted an “unwarrantable failure” to comply with 

mandatory safety standards. Additionally, for five of these citations, the Secretary assigned 

specially assessed monetary penalties in excess of the standard penalty calculation. At hearing, 

Big Ridge contested the factual representations of the testifying MSHA inspectors, the 

underlying legal basis of the citations, the Secretary’s gravity and negligence designations, and 

the assessed monetary penalty amounts. 

As such, I have prepared a Statement of Law outlining the Commission’s instructions 

regarding: 1) Statute and Safety Plan Interpretation; 2) Burden of Proof; 3) Significant and 

Substantial violations; 4) Unwarrantable Failure; and 5) Civil Penalty and Special Assessment. I 

have followed these guidelines for each of the eight contested violations. 

The hearing for these eight citations lasted three days and produced a 670 page transcript 

with numerous exhibits. The parties submitted a combined total of over 200 pages of posthearing briefs articulating their position on the evidence presented at hearing. I have reviewed 

all of this evidence at length. In the interest of clarity, I have not included a summary of the 

testimony presented, but have cited to the testimony, exhibits, and arguments I found critical to 

my ultimate ruling within my analysis. 

36 FMSHRC Page 1000
III. STATEMENT OF LAW 

A. Interpretation

Mandatory site specific safety plans, including ventilation plans, are enforceable as 

mandatory standards. UMWA v. Dole, 870 F. 2d 662, 671 (D.C. Cir. 1989); Ziegler Coal Co. v. 

Kleppe, 536 F. 2d 298, 409 (D.C. Cir. 1976); Energy West Mining Co., 17 FMSHRC 1313, 1317 

(Aug. 1995). 

Because MSHA-required site specific safety and health plan provisions are enforceable 

as mandatory standards, 

The operator is entitled to the due process protection available in 

the enforcement of regulations... When a violation of a regulation 

subjects private parties to criminal or civil sanctions, a regulation 

cannot be construed to mean what an agency intended but did not 

adequately express. Laws must give the person of ordinary 

intelligence a reasonable opportunity to know what is prohibited, 

so that he may act accordingly

Energy West Mining Co., 17 FMSHRC 1317-18 (internal citations omitted). 

However, the Secretary is not required to provide the operator actual notice of its 

interpretation of a mandatory site specific safety standard, rather, 

The Commission has applied an objective standard of notice, i.e., 

the reasonably prudent person test. The Commission has 

summarized this test as ‘whether a reasonably prudent person 

familiar with the mining industry and the protective purposes of 

the standard would have recognized the specific prohibition or 

requirement of the standard.’ 

Id. at 1318 (internal citations omitted). 

 

B. Burden of Proof

The Commission has long held, “In an enforcement action before the Commission, the 

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

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

The Commission has described the Secretary’s burden as: 

The burden of showing something by a “preponderance of the 

evidence,” the most common standard in the civil law, simply 

requires the trier of fact ‘to believe that the existence of a fact is 

more probable than its nonexistence. 

36 FMSHRC Page 1001
RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Garden Creek Pocahontas 

Co., 11 FMSHRC 2148, 2152 (Nov. 1989). 

The Secretary may establish a violation by inference in certain situations. Garden Creek 

Pocahontas Co., 11 FMSHRC 2153. Any such inference, however, must be inherently 

reasonable, and there must be a rational connection between the evidentiary facts and the 

ultimate fact inferred. Mid-Continent Resources, 6 FMSHRC 1132, 1138. (May 1984).

If the Secretary has established facts supporting the citation, the burden shifts to the 

respondent to rebut the Secretary’s prima facie case. Construction Materials, 23 FMSHRC 321, 

327 (March 2001) (ALJ Feldman). 

C. Significant and Substantial

A violation is Significant & Substantial (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 Division, National Gypsum 

Co., 3 FMSHRC 822, 825 (Apr. 1981). 

In order to uphold a citation as S&S, the Commission has held that 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). 

An S&S designation must be based upon the particular facts surrounding the violation 

and must be made in the context of continued normal mining operation. Texasgulf, Inc., 10 

FMSHRC 498, 500 (Apr. 1988); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 

1984). The Secretary does not necessarily have to “prove a reasonable likelihood that the 

violation itself will cause injury.” Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2365 

(Oct. 2011) (holding that failure to maintain emergency equipment was S&S despite low 

likelihood of emergency occurring); See also Musser Engineering, Inc. and PBS Coals 32 

FMSHRC 1257, 1280-81 (Oct 2010) (PBS). 

However, the Commission has recently reiterated that “it is the contribution of a violation 

to the cause and effect of a hazard that must be significant and substantial. “ Black Beauty Coal, 

34 FMSHRC 1733, 1740 (August 2012) (upholding Judge’s S&S determination that a 1⁄4 mile 

wide gap in a protective berm created a safety hazard of trucks driving over a steep embankment) 

(quoting US Steel Mining Co., 6 FMSHRC 1834, 1836)(Aug 1984). 

Additionally, for accumulation violations of 30 CFR § 75.400, the Commission has ruled 

the question is whether there was a confluence of factors that made an injury-producing fire 

and/or explosion reasonably likely. UP&L, 12 FMSHRC 965, 970-71 (May 1990). Factors that 

have been considered include the extent of the accumulation, possible ignition sources, the 

presence of methane, and the type of equipment in the area. UP&L, 12 FMSHRC at 970-71; 

36 FMSHRC Page 1002
Texasgulf, 10 FMSHRC at 500-03. An ALJ has also recently determined that roof control 

violations of 30 CFR § 75.202(a) are S&S when the Secretary demonstrates hazardous 

conditions in the roof and a reasonable likelihood of injury, but non S&S when the Secretary has 

failed to demonstrate a reasonable likelihood of injury. Hidden Splendor, 34 FMSHRC 3310, 

3318, 3370 (ALJ Manning) (December 2012) ( holding that (75.202(a) violation was S&S when 

roof was taking weight and sagging in area of travel but separate 75.202(a) violation was not 

S&S when Secretary did not show likelihood of miners travelling in that area); See also C.W. 

Mining, 15 FMSHRC 178, 186 (ALJ Cetti) (January 1993) (holding that 75.202(a) violation was 

non S&S when area was 5’8” high, difficult to get under, and resistant to scaling attempts).

 

D. Unwarrantable Failure

Section 104(d) (1) of the Mine Act states: 

If, upon any inspection of a coal or other mine, an authorized 

representative of the Secretary finds that there has been a violation 

of any mandatory health standard... and if he finds such violation 

to be caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, he shall 

include such findings in any citation given to the operator under 

this Act. 

Unwarrantable failure is defined as aggravated conduct constituting more than ordinary 

negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is 

characterized by such conduct as “reckless disregard,” “willful intent”, “indifference”, or the 

“serious lack of reasonable care.” Id. at 2004-04; Rochester & Pittsburgh Coal Co., 13 

FMSHRC 189, 193-94. (February 1991). 

The Commission considers the following factors when determining the validity of 

104(d)1 and 104(d)2 orders: (1) the length of time that the violation has existed and the extent of 

the violative condition, (2) whether the operator has been placed on notice that greater efforts 

were necessary for compliance, (3) the operator’s efforts in abating the violative condition, (4) 

whether the violation was obvious or posed a high degree of danger and (5) the operator’s 

knowledge of the existence of the violation. Consolidation Coal Co., 22 FMSHRC 340, 353 

(Mar. 2000). All of the relevant facts and circumstances of each case must be examined to 

determine if an actor’s conduct is aggravated, or whether mitigating circumstances exist. 

IO Coal Co., 31 FMSHRC 1346, 1351 (Dec. 2009). 

36 FMSHRC Page 1003
E. Penalty Assessment

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 (March 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). 

 Although I assess monetary penalties de novo, the Secretary has submitted proposed 

penalty amounts for each citation contested at hearing. Following 30 CFR §100.3, the Secretary 

submitted regularly assessed penalty amounts based upon point values corresponding to the six 

statutory criteria for Citation Nos. 8445336, 8431905, and 8444863. Pursuant to 30 CFR 

§100.5(a), the Secretary has submitted specially assessed penalty amounts for Order Nos. 

8436212, 8436107, 8445268 and Citation Nos. 8444809 and 8445037. 

 For all penalty assessments, the Secretary bears the burden of establishing the proposed 

penalty is appropriate based upon the statutory criteria of Section 110(i) of the Act. In re: 

Contest of Respirable Dust Sample Alteration Citations, 14 FMSHRC 239, 241 (ALJ Broderick) 

(January 1992) (Order). Similarly, for specially assessed penalties in excess of the standard 

penalty calculation, the Secretary has the burden of establishing the existence of aggravating 

factors to justify such an increase. S&M Construction, Inc., 18 FMSHRC 108, 1052-53 (ALJ 

Koutras) (June 1996); Freeport McMoran Morenci, Inc., 35 FMSHRC 172, 181 (ALJ Miller) 

(January 2013) 

 In this matter, the parties have stipulated that Big Ridge is a large operator and Willow 

Lake is a large mine. Tr. 10. Big Ridge has not argued or presented any evidence indicating that 

any of the proposed penalties would affect its ability to continue business operations. I have 

discussed the violation history, negligence, gravity, and abatement efforts pertaining to each 

alleged violation within my findings for each order/citation. 

36 FMSHRC Page 1004
IV. ANALYSIS LAKE 2012-506

 

A. Order No. 8436212

MSHA Inspector Chad Lampley issued Order No. 8436212 on September 12, 2011 for an 

alleged violation of 30 CFR § 75.400. Tr. 12. Lampley alleged within the citation that: 

Accumulations of combustible materials are present at the 2nd

North conveyor belt tail. Accumulations are in the form of coal 

fines with dry material in contact and pressed by the moving 

conveyor belt. Accumulations range from 24 to 16 inches in depth 

for a distance of approximately 6 feet. 

Sec’y Ex. 1, 1. 

 Lampley determined that the violation was reasonably likely to result in a lost workdays 

or restricted duty injury, affected 2 persons, the violation was S&S, the result of Big Ridge’s 

high negligence, and a 104 d (2) unwarrantable failure. Sec’y Ex. 1, 1. The Secretary has 

proposed a specially assessed penalty of $66,142.00. Sec’y Br., 13. 

1. Findings

30 CFR § 75.400 mandates that: 

Coal dust, including float coal dust deposited on rock-dusted 

surfaces, loose coal, and other combustible materials, shall be 

cleaned up and not be permitted to accumulate in active working 

areas or on diesel-powered and electric equipment therein. 

On cross examination, Inspector Lampley confirmed that 30 CFR § 75.400 only prohibits 

accumulations of “combustible” material in active workings, and does not prohibit 

accumulations of water, rock dust, or other incombustible material. Tr. 62-63. As such, I have 

reviewed the testimony of Inspector Lampley and Shift Manager Podoriscki in order to 

determine whether or not the accumulated material at the 2nd North tail pulley was indeed 

combustible. However, the Commission has firmly held that it is not necessary for an inspector 

to test the combustibility of an accumulation in order to issue a valid 30 CFR § 75.400 citation. 

Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1290 (December 1998). Instead, a 

determination of combustible content can be based on the experience of the observing inspector. 

Id. 

Furthermore, the presence of rock dust, moisture, and reject material within the 

accumulation of what Inspector Lampley described as “coal fines” does not remove the 

accumulation from coverage of the standard. Tr. 27. 30 CFR § 75.400 itself specifically 

prohibits “coal dust deposited on rock-dusted surfaces.” Additionally, other ALJs have 

previously upheld 30 CFR § 75.400 citations when the accumulations contained wet portions. 

Eastern Associated Coal Corp., 7 FMSHRC 601, 603 (April 1985) (ALJ Faveur). ALJ Faveur 

36 FMSHRC Page 1005
reasoned that when an accumulation of partially damp coal is present in an active working area, a 

hazard still exists as, “water on the coal would only slow down the burning process; it would not 

make the coal incombustible.” Eastern, 7 FMSHRC 603. 

Inspector Lampley credibly testified that the accumulation contained “a lot” of coal fines 

at the center of the accumulation and that the accumulation was dried out where the pile was in 

contact with the moving conveyor belt. Tr. 27, 29, 37. Inspector Lampley also credibly testified 

that the coal was so compacted that it took at least an hour for several miners to chip away at the 

pile and remove the material. Tr. 48. Big Ridge has contested Lampley’s assertion that it took 

over an hour to clean the accumulation, stating the belt had been restarted before Lampley 

returned to the area to officially terminate the order. Resp. Br,, 12. However, I credit Lampley’s 

testimony and note that Big Ridge felt it necessary to provide additional workers in order to 

remove the accumulation. Tr. 48. Additionally, the photos offered by the Secretary substantiate 

Inspector Lampley’s observations regarding the compacted nature of the accumulations, as they 

show vertical shelves of what appears to be coal in close contact with the conveyor belt and tail 

roller. Sec’y Ex. 2A, 2B. 

For this reason, while I find Shift Manager’s Podoriscki’s testimony generally credible, I 

do not believe his description of the accumulation as a wet slurry to be an accurate description of 

the accumulation. Tr. 89. If the accumulation had indeed been a recently formed wet slurry, it 

would not have stood up in a vertical shelf or been layered with distinct layers of rock dust. Tr. 

30; Sec’y Ex. 2A, 2B. 

Thus, I find that the material accumulation at the 2nd North tail pulley primarily consisted 

of compacted coal fines, and that these coal fines were dry and combustible where they were in 

contact with the moving conveyor belt. Therefore, I hold that Big Ridge violated 30 CFR § 

75.400 by allowing this condition to develop and persist. 

2. Gravity

Additionally, I find that Inspector Lampley correctly designated the accumulation as an 

S & S violation. I have already held that the accumulation constituted a violation of 30 CFR § 

75.400. Coal accumulations at an active conveyor belt contribute to the discrete safety hazard of 

an increased likelihood of an ignition, fire, and/or explosion occurring. 

In this particular situation, Lampley credibly testified that contact between the coal fines 

and the moving conveyor belt could produce enough frictional heat to start a fire. Tr. 50-51. I 

do take note that an ALJ has declined to designate a violation of 30 CFR § 75.400 as S & S when 

the accumulation was completely saturated with water. United States Steel Mining, 5 FMSHRC 

1873, 1874-75 (October 1983) (ALJ Broderick) (upholding 330 CFR § 75.400 violation but 

removing S&S designation when accumulation was so wet it was too “soupy” to shovel). 

However, in this case, the compacted coal fine accumulation at the back of the tail pulley was 

dry and in contact with the moving belt. Tr. 26. As such, I hold that there was a reasonable 

likelihood of the accumulation resulting in a fire that would cause serious injuries to the belt 

worker and examiner assigned to this area. Tr. 52. 

36 FMSHRC Page 1006
Finally, I find that if a fire did occur, it was reasonably likely that workers would suffer 

serious burn and or smoke inhalation injuries. As such, the Secretary has produced sufficient 

evidence to sustain all four elements of the Mathies S&S test. 

I also hold that the presence of fire suppression systems do not motivate me to 

downgrade the violation from S & S. As explained by Inspector Lampley, the fire suppression 

systems in place may have detected a fire and prevented the fire from spreading, but they would 

not have prevented the fire from starting in the first place and endangering miners in the 

immediate area. In fact, the Commission has recently held that the presence of fire suppression 

systems does not “mean that fires do not pose a safety risky to miners.” Big Ridge, Inc., 35 

FMSHRC 1525, 1529 (June 2013) (quoting Buck Creek Coal Co. v. FMSHRC, 52 F. 3d 133, 

136) (“Big Ridge I”). Therefore, I uphold Order No. 8436212 as an S&S violation. 

I agree with Inspector Lampley in his determination that the violation most likely 

endangered the two miners who normally work in that area. Both Inspector Lampley and Shift 

Manager Podoriscki testified that Ms. Tucker was working in the adjacent area at the time of the 

citation. Tr. 46; 89. Lampley also credibly testified that a fire at this area would also expose the 

belt examiner who was required by law to be in the belt travel way while the belt was operating. 

Tr. 52. To hold that this violation affected more than two persons would be to assume that any 

fire that occurred would be reasonably likely to spread smoke and or flame to other areas of the 

Willow Lake mine not detailed at hearing. I decline to make this assumption as I cannot 

completely ignore the presence of fire suppression systems, fire resistant conveyor belts, and 

split air ventilation systems at the Willow Lake mine. For these reasons I hold that the violation 

in Order No. 8436212 affected 2 persons. 

3. Negligence

I also find that the violation was the result of high negligence on the part of Big Ridge. 

Inspector Lampley credibly testified that an agent-operator was required to examine the area at 

least once per shift and yet the accumulation was so compacted it appeared that it had been there 

for at least three shifts. Tr. 43, 53. Lampley also explained that MSHA had previously notified 

Big Ridge personnel in close-out conferences about the importance of properly cleaning up 

accumulations along conveyor belt lines. Tr. 54, 57. While Lampley stated that Big Ridge 

personnel informed him they had recently held safety meetings about cleaning up coal 

accumulations, the compacted nature of the accumulation and multiple layers of rock dust within 

the coal fines indicated that this was not a recently formed accumulation. Tr. 29-30. For these 

reasons, I find that Big Ridge’s clean-up efforts at this location were ineffective and 

demonstrated a high level of negligence. 

36 FMSHRC Page 1007
4. Unwarrantable Failure

For Order No. 8436212, I find that the Secretary has produced sufficient evidence to 

satisfy the five factor test considered by the Commission in evaluating unwarrantable failure 

designations. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). 

a. Extent and Duration of the Violation 

 

 The entered photos and Inspector’s Lampley testimony demonstrate that the 

accumulation of coal fines had built up past the midpoint of the tail pulley, indicating that the 

accumulation was significant and had lasted for some time. Tr. 22; Sec’y Ex. 2A, 2B. 

Additionally, the layers of rock dust within the compacted coal fines also show that the 

accumulations had persisted for at least several shifts. Tr. 30, Sec’y Ex 2B. 

b. Notice to the Operator 

 Inspector Lampley credibly testified that MSHA had recently issued similar citations for 

impermissible coal accumulations at the Willow Lake portal mine. Tr. 54, 55. Additionally, 

Lampley stated that MSHA had emphasized the importance of important cleanup measures at 

conveyor belts in recent closeout meetings. Tr. 54, 57. 

c. Prior Abatement Efforts 

Big Ridge Shift Manager Podoriscki credibly testified that he assigned an hourly 

employee to the dedicated task of cleaning conveyor belts in this area on a regular basis and had 

done so on the day of the violation. Tr. 85. Inspector Lampley corroborated that a miner was 

cleaning a conveyor belt in an adjacent area when he issued the citation. Tr. 46. However, the 

presence of rock dust within the accumulated and compacted coal fines indicates that previous 

clean-up efforts were insufficient. Tr. 32. 

 

d. Obviousness of the Hazard and Degree of Danger 

 At the time of the citation, the accumulation was 24 inches high and in contact with the 

conveyor belt and roller. Tr. 22; Sec’y Ex. 1. Although Shift Manager Podoriscki claimed that 

wet sprays could cause material to build up quickly, I have repeatedly noted that the presence of 

rock dust within the coal fines indicates that this condition had existed for several shifts. Tr. 32, 

90. Similarly, although Big Ridge contends that the accumulation was too wet to ignite and 

Lampley concedes the accumulation was not warm at the moment, it is reasonably likely that the 

material would have continued to dry out and increase frictional heat under continued belt 

operation. Tr. 39-40. As such, the condition posed a high degree of danger as it increased the 

likelihood of a coal-belt fire occurring. 

e. Operator’s Knowledge of the Violation 

 Again, the presence of rock dust within the accumulation and compacted nature of the 

coal fines indicates the accumulation had existed for several shifts. Tr. 22, 32. As such, Big 

36 FMSHRC Page 1008
Ridge examiners failed to identify the hazard and completely remove the accumulation during 

mandatory pre and on-shift examinations. 

Thus, the Secretary has produced supporting evidence for all Commission unwarrantable 

failure factors, and Big Ridge’s evidence of prior abatement efforts only point to previous 

ineffective efforts. Therefore, I hold that Big Ridge conducted cleanup efforts with a “serious 

lack of reasonable care” and hold that the violation was properly designated a 104 d (2) 

unwarrantable failure. 

5. Penalty Assessment

 Although I assess monetary penalties de novo, the Secretary has submitted a proposed 

specially assessed penalty of $66,142.00 for Order No. 843212 without any evidence to justify or 

support the enhanced penalty. Secy. Br., 13. The Respondent introduced, over the Secretary’s 

objections, a Special Assessment Narrative Form that indicates the penalty for Order No. 

8436212 would have been regularly assessed a penalty of $15,971.00. Resp. Ex. B. The special 

assessment form indicates that the specially assessed penalty was due to an increase in the 

number of points assigned to the likelihood of occurrence, severity of injury, number of persons 

affected, negligence, and unwarrantable failure penalty designations. Resp. Ex. B. 

 As indicated by Inspector Lampley’s testimony and the Special Assessment Narrative 

Form, Big Ridge has been cited for numerous violations of 30 CFR § 75.400 at the Willow Lake 

Mine. Tr. 55; Resp. Ex. B. The parties have stipulated that Big Ridge is a large operator. Tr. 

10. Big Ridge has not claimed or presented any evidence indicating that the proposed penalties 

will affect its ability to continue mining operations. I have found that Big Ridge’s negligence 

was high due to a serious lack of reasonable care in properly cleaning up accumulated material. 

However, I find that its attempt at clean-up efforts prior to the citation, while insufficient, 

indicate that the accumulations were not the result of intentional misconduct or wanton disregard 

of the standard. I have determined that while an injury was reasonably likely to cause 

permanently disabling injuries to miners in the immediate area, the number of miners likely to be 

affected is two. Finally, Big Ridge personnel promptly and properly removed the accumulation 

from the tail pulley area after Inspector Lampley issue the order. 

 After considering these statutory factors, consulting, for reference purposes, the 30 CFR 

100.3 penalty tables and noting the high degree of danger posed by the violation, I assess a civil 

monetary penalty of $30,000 for Order No. 8436212. 

 

B. Order No. 8436107

MSHA Inspector Larry Morris issued Order No. 8436107 as a 104(d)(2) unwarrantable 

failure on November 28, 2011 for an alleged violation of 30 CFR § 75.202(a). Tr. 239. Morris 

alleged within the citation that: 

An area of roof, measuring 5 feet by 8 feet 8 inches, at cross cut # 

92 along the 2nd Main North travel way, is not supported or 

otherwise controlled to protect persons from hazards related to 

36 FMSHRC Page 1009
falls of the roof or rib. There is one loose roof bolt in this area and 

it had been painted a bright orange and was visible to even the 

most casual observer. The travel way between cross cut 3 92 and # 

93 has tensar bolted to the roof and is bagged down with the 

weight of loose rock. These tensar bags must be cut down and the 

area re-supported. 

Sec’y Ex. 6, 1. 

 Morris determined that the likelihood of injury was unlikely, that a resulting injury would 

be lost workdays or restricted duty, the violation was non S&S, 4 persons were affected, and that 

the violation was a 104 (d) (2) unwarrantable failure to comply with a mandatory safety standard. 

Sec’y Ex. 6. The Secretary has proposed a regularly assessed penalty of $14,700.00 for Order 

No. 8436107. Sec’y Br., 32. 

1. Findings

 The cited standard, 30 CFR § 75.202 (a), requires that: 

The roof, face and ribs of areas where persons work or travel shall 

be supported or otherwise controlled to protect persons from 

hazards related to falls of the roof, face or ribs and coal or rock 

bursts. 

Inspector Morris credibly testified that the base plate of the cited roof support bolt was 

bent and loose. Tr. 249. The Secretary introduced photos that clearly showed the bent condition 

of the base plate. Morris explained that the damaged bolt was part of the standard support 

pattern in this area and necessary under the mine’s mandatory roof plan. Tr. 290. Respondent 

has not disputed the damaged condition of the roof bolt base plate or the violation itself. As 

such, I hold that Big Ridge violated 30 CFR 75.202 (a) by failing to repair the damaged base 

plate on the pattern roof bolt. 

2. Gravity 

 Morris testified that the bent base plate was the only damaged bolt in the adjacent area 

and that the roof was sound in this specific area. Tr. 249, 255. Morris maintained at trial that he 

determined an injury was not reasonably likely to result from this condition. Tr. 256. For these 

reasons, I find that the cited condition was “unlikely” to result in injury and that the violation 

was appropriately designated as non S&S. The damaged bolt was located in a main travel way 

regularly traveled by unprotected personnel carriers. Tr. 246. Therefore, I uphold Inspector 

Morris’s determination that in the event of a roof-fall, the condition could expose four persons to 

“Lost Workday or Restricted Duty” injuries. 

36 FMSHRC Page 1010
3. Negligence 

Inspector Morris based his high negligence designation for Order No. 8436107 upon his 

belief that the rock dust on top of the plate indicated Big Ridge had failed to repair the damaged 

bolt for more than one shift and was in fact aware of the damage since the bolt was painted 

orange. Tr. 247, 251. Morris also referenced his previous warnings to Big Ridge about the lack 

of clearance in travel ways and the high number of previous 30 CFR 75.202 violations at Willow 

Lake Mine. Tr. 258. 

Big Ridge contests the high negligence designation, arguing that the damaged base plate 

was not obvious, as a different MSHA inspector had passed through the same area only half an 

hour earlier without noting the damaged bolt or issuing a related citation. Tr. 277; Resp. Br., 51. 

Big Ridge also argues Willow Lake personnel normally flagged off a safe perimeter around a 

damaged bolt rather than painting the damaged bolt in order to avoid exposing workers to a rooffall hazard. Tr. 280-81; Resp. Br., 57. 

Big Ridge further contends that the Secretary’s photo show that neither the roof nor the 

top of the bent plate is painted. Resp. Br., 57. Big Ridge concludes that this demonstrates the 

bolt was painted before the damage occurred. Id. Big Ridge also contends that as the damaged 

bolt was a replacement bolt installed after the roof was originally rock dusted, it is reasonable to 

conclude that some rock dust would have adhered to the topside of the plate before it was bent 

loose from the roof. Resp. Br., 56. 

After considering both parties arguments and the entered exhibits, I hold that the 

Secretary did not produce sufficient evidence to establish that Big Ridge acted with high 

negligence. Big Ridge personnel credibly testified that miners normally flag off a safe perimeter 

rather than painting damaged bolts. Tr. 280-81. In the Secretary’s photos, a clear outline 

appears on the roofline indicating where the baseplate was positioned before it was struck and 

rotated loose from its original position. Sec’y Ex. 8, 1-2. As such, I hold that the base plate was 

painted before the bolt was struck loose. Although neither party offered an alternate explanation 

for why the roof bolt was painted, I find that given the high volume of traffic in this passageway, 

Big Ridge may have painted the bolt bright orange to warn equipment operators and prevent 

equipment from striking the bolt. For all of these reasons, I hold that the Secretary failed to 

show that the roof bolt had been damaged for a long enough period of time to justify a high 

negligence designation 

Additionally, I find that the presence of bagged down tensar netting was neither a 

violative condition nor an indication of Big Ridge’s negligence. The Secretary did not contend 

that the use of tensar violated Willow Lake’s roof plan or point to any official guidance that 

provided guidelines for appropriate vs. non-appropriate use. Although an inspector may rely 

upon his experience in issuing citations, Inspector Morris did not claim that the tensar was frayed 

or damaged in any way. The photos entered into evidence do not demonstrate any excessive 

loading or damaged conditions. Sec’y Ex. 7, 19-21. For these reasons I have not factored the 

presence of the rock-filled tensar netting into my negligence findings. 

36 FMSHRC Page 1011
I also find Inspector Morris’s reference to previous meetings on equipment/roof 

clearance, and Willow Lake’s history of 75.202(a) citations an insufficient basis to merit a 

finding of high negligence for this Order. I have already ruled that the Secretary did not 

establish that the roof bolt had been damaged for an extended period of time. As such, previous 

meetings regarding the importance of roof clearance and a history of roof control violations did 

indeed put Big Ridge on notice that more effort was needed in general to achieve roof control 

compliance. However, the Secretary has only demonstrated that Inspector Morris found one 

partially damaged bolt in the course of his inspection on Nov 28. 2011. Therefore, I find that 

Big Ridge acted with moderate negligence in failing to immediately identify and repair the single 

damaged bolt. 

4. Unwarrantable Failure

For many of the same reasons discussed above in my negligence findings, I find that the 

Secretary has not produced sufficient evidence to satisfy the five factor test considered by the 

Commission in evaluating unwarrantable failure designations. Consolidation Coal Co., 22 

FMSHRC 340, 353 (Mar. 2000). 

a. Extent and Duration of the Violation 

The Secretary did not establish that the roof bolt had been damaged for a significant time 

period, and the violative condition was not extensive as only one bolt was partially damaged. 

Sec’y Ex. 6. 

b. Notice to the Operator 

MSHA had put Big Ridge on notice that greater efforts toward roof-control compliance 

were necessary through previous close-out meetings and other 30 CFR 75.202 citations. Tr. 258. 

c. Prior Abatement Efforts 

The parties did not specifically discuss prior abatement activities, but Inspector Morris 

testified that the Willow Lake mine had suffered numerous roof falls in the recent past. 

However, Inspector Morris and Supervisor Cummins also testified that Big Ridge began using 

longer roof bolts in response to roof falls, that the bolt in question was itself a replacement bolt 

for a different damaged bolt, and that a nearby hazardous kettle bottom had been supported and 

then eventually removed from the roof. Tr. 244, 252-53. 

d. Obviousness of the Hazard and Degree of Danger 

While the roof-bolt was painted bright orange, that paint was not necessarily indicative of 

damage and it is undisputed that an MSHA inspector passed through the area shortly before 

without noting the damage. Tr. 277. As such, the damage was not inherently obvious and 

Inspector Morris confirmed that the roof in the area was structurally sound and it was unlikely 

for an injury to result from this specific violation. Tr. 249, 256. 

36 FMSHRC Page 1012
e. Operator’s Knowledge of the Violation 

The Secretary did not present convincing evidence that Big Ridge was aware of the 

damage to this specific bolt. The Secretary has argued that the bright orange paint indicates that 

Big Ridge marked the bolt as damaged yet failed to install a replacement bolt. However, I have 

found that the absence of paint on the roof underneath the base plate and top of the bent plate 

indicates that the bolt was painted before it was struck loose. As such, I find that Big Ridge did 

not have any actual knowledge of the damaged roof bolt. 

Therefore, I find that the Secretary has only offered supporting evidence for the second 

and peripherally third factors considered by the Commission in an unwarrantable failure 

analysis. Additionally, the testimony indicates that Big Ridge had undertaken some abatement 

work in improving their roof control measures, mitigating the Secretary’s contention that the 

Willow Lake Mine had pervasive roof control problems. 

The Secretary has only offered evidence supporting two of the five unwarrantable failure 

factors. The underlying violation itself in Order No. 8436107 concerned a single partially 

damaged bolt that was not likely to cause an injury. While it is not necessary for the Secretary to 

provide supporting evidence for all of the unwarrantable failure factors, the Consolidation Coal

unwarrantable failure test is a balancing test and I hold that the evidence, when considered as a 

whole, fails to establish that Big Ridge acted with a serious lack of reasonable care, willful intent 

or reckless disregard. IO Coal Co., 31 FMSHRC 1346, 1351 (Dec. 2009); Rochester & 

Pittsburgh Coal Co., 13 FMSHRC at 193-94. As such, I find that the Secretary has not 

established that Order No. 8436107 was an unwarrantable failure to comply with a mandatory 

safety standard due to more than ordinary negligence. For this reason, Order No. 8436107 shall 

be modified from a 104(d) (2) Order to a 104 (a) Citation. 

5. Penalty Assessment

 The Secretary has proposed a specially assessed penalty of $14,700 for Order No. 

8436107. Sec’y Br., 2. The Special Assessment Narrative Form indicates that Order No. 

8436107 would have received a regularly assessed penalty of $4,000.00. Resp. Ex. K. As 

discussed above, I have already held that the negligence designation for this citation shall be 

reduced from high to moderate and that the unwarrantable failure designation shall be removed. 

The Secretary has not specifically addressed his justification for the specially assessed penalty 

amount, but has pointed out that Big Ridge was cited 136 times in the previous two years for 

alleged violation of 30 CFR § 75.202(a), that the Willow Lake mine had experienced numerous 

roof falls in the recent past, and that Inspector Morris had specifically addressed the need to 

improve equipment clearance in travel ways. After considering all statutory penalty criteria and 

the specific background for this violation, I assess a civil monetary penalty of $1,500.00 for the 

modified Citation No. 8436107. 

 

36 FMSHRC Page 1013
V. ANALYSIS DOCKET LAKE 2012-66

A. Citation No. 8444809

MSHA Inspector Scott Lee issued Citation No. 8444809 on June 12, 2012 for 

an alleged violation of 30 CFR 75.202(a). Tr. 373. Lee alleged within the citation 

that: 

The roof where persons work or travel was not adequately 

supported to protect from hazards related to falls of the roof. Two 

roof bolts in patterns were damaged and were not tight against the 

roof. One of the roof bolt plates was completely missing and the 

other bolt was curled up towards the roof. The area of exposure 

was approximately 4 to 5 feet in width and approximately 10 feet 

in length. 

This condition was observed in the # 6 entry (SS 84+25) on the 

inby corner of the intersection immediately adjacent to the 

dumping location on the feeder (#5 entry) in unit # 4, (MMU 014). 

 

Sec’y Ex. 11, 1. 

 

 Lee determined that that the violation was reasonably likely to result in a lost workdays or 

restricted duty injury and affected 1 person. Lee also determined that the violation was S&S and 

the result of Big Ridge’s high negligence. Sec’y Ex. 11, 1. The Secretary has proposed a 

specially assessed penalty of $47,700.00. Sec’y Br., 42. 

1. Findings

 The cited standard, 30 CFR § 75.202(a) requires that, 

The roof, face and ribs of areas where persons work or travel shall 

be supported or otherwise controlled to protect persons from 

hazards related to falls of the roof, face or ribs and coal or rock 

bursts. 

 Inspector Lee testified that without the bearing plate tight to the roof, the grouted roof bolts 

were not serving their intended purpose. Tr. 388. Big Ridge Safety Manager Schiff stated that 

in his opinion, the bearing plates were not necessary for structural support, but agreed that the 

36 FMSHRC Page 1014
Willow Lake Roof Plan required bearing plates to be tight to the roof.1

 Tr. 414. Both Lee and 

Schiff testified that, in addition to the missing and loose bearing plates, the bolts were bent over. 

Tr. 386, 407. As such, it is clear that the two pattern bolts were not in place as designed and 

required by the mine’s mandatory roof control plan. Therefore, I hold that the Secretary has 

established that Big Ridge violated 30 CFR § 75.202(a) and the mine’s mandatory roof control 

plan by not repairing bent pattern roof control bolts and baseplates. 

 2. Gravity

 Inspector Lee designated Citation No. 8444809 as an S&S violation. Sec’y Ex. 11. I have 

already held that the Secretary has established the violation of a mandatory standard thus 

meeting the first element of the Mathies test. However, I find that Big Ridge has sufficiently 

rebutted the Secretary’s allegation that the bent plates created a discrete safety hazard by 

presenting credible testimony corroborated by Inspector Lee that the roof was in fact sound in 

this area. 

 Specifically, the affected area was described by Inspector Lee as creating a 20 square foot 

area of exposure. Tr. 390. The surrounding roof was properly bolted and the bent bolts were up 

against the rib. Sec’y Ex. 42. Additionally, the bent bolts were fully grouted and the immediate 

area was still solid according to Safety Manager Schiff. Tr. 410. Although Inspector Lee 

testified to a history of roof falls at the Willow Lake mine, Lee confirmed that the roof in this 

area was not cracked at the time of the inspection and did not give any other indication of 

instability. Tr. 389, 394. Even after considering continued normal mine operations given the 

surrounding roof bolting, the fully grouted installation, the stability of the immediate roof area, 

and the location of the damaged bolts up against the rib; I find that in these specific 

circumstances the Secretary has not demonstrated that a hazard was created by the bent base 

plate and bolts. 

 Additionally, even if I were to have found a discrete safety hazard was created by the bent 

roof bolts, I also find that due to the particular location and the relatively small size of the 

affected roof area, it was highly unlikely for an exposed miner to be in that area in the unlikely 

event of a roof fall. Big Ridge Safety Manager Schiff credibly testified that a No Walk Zone 

prohibited miners from entering Entry #6 from the nearby dinner hole and feeder belt. Tr. 407-

08. Big Ridge Section Foreman Reeves also testified that mining activities were located in a 

separate area and only haul cars with protective canopies traveled entry #6 during the June 12, 

2012 production shifts. Tr. 423. Inspector Lee’s diagram in his inspection notes indicates that 

 1

 Although Manager Schiff agreed that the Willow Lake roof control plan required 

bearing plates to be tight to the roof, the Willow Lake Roof Control Plan submitted by the 

Secretary does not appear to actually state this requirement. Additionally, in their Post Hearing 

brief, the Secretary relied upon Schiff’s statement during cross-examination rather than pointing 

to a particular clause of the roof-control plan to assert that the Willow Lake Roof Control plan 

required bearing plates to be tight to the roof. Sec’y Br., 43. As Respondent has not contested 

this ambiguity, and Inspector Lee credibly testified that the loose bearing plate and bent bolt 

were violations of 30 CFR § 75.202(a), I have accepted the Secretary’s representation for the 

purpose of determining that a violation occurred. 

36 FMSHRC Page 1015
the damaged bolts were up against the rib. Sec’y Ex. 42. Similarly, Safety Manager Schiff 

stated that a miner would have to almost “crawl” against the rib in order to pass underneath the 

damaged bolts. Tr. 416. As any roof fall that occurred in the affected area would likely involve 

relatively small amounts of material, I find that ram car operators were protected from injury by 

the canopy of their cars. As pedestrian traffic was prohibited in this area, I find that the 

Secretary has not established there was a reasonable likelihood of an injury occurring. For these 

reasons, I rule that the likelihood of injury for Citation No. 8444809 shall be MODIFIED to 

unlikely. Additionally, as the Secretary has failed to satisfy the second and third elements of the 

Mathies test, I also hold that Citation No. 8444809 shall be modified to non- S&S. 

For reasons discussed above regarding the location of the damaged bolts, I also hold that 

any resulting accident would likely involve lost workdays or restricted duty injuries and affect 

one person. 

3. Negligence

 I find that the violation was the result of moderate negligence on the part of Big Ridge. 

Inspector Lee stated that the bolts had been dusted over and had likely been damaged somewhere 

between 5 to 12 shifts prior to his inspection depending on whether a ram car or miner had struck 

the bolts. Tr. 391, 398. However, the Secretary did not present any definitive evidence of when 

the bolts had actually been damaged. Furthermore, rock dust made it difficult to detect the 

damage, as Inspector Lee himself noted that “if you wasn’t looking real close at it, you would 

miss it because it had been dusted through.” Tr. 392-93. Indeed, Lee himself passed by the bolts 

without noting the damage on his way towards the face, and MSHA Inspector Eddie Kane also 

passed by the area without noticing the damaged bolts earlier that same shift. Tr. 407, 409. As 

such, although the damaged bolts were in an area that required mandatory inspections, it is 

reasonably likely that the damage occurred within the past several shifts and was obscured by 

rock dusting operations. Therefore, the location of the damage at a corner up against the rib, the 

layer of rock dust, and the likelihood of recent damage all decreased the likelihood of Big Ridge 

identifying the damaged bolts and stand as mitigating circumstances. As such, I rule that the 

negligence designation for Citation No. 8444809 shall be MODIFIED from high to moderate. 

4. Penalty Assessment

 The Secretary has proposed a specially assessed penalty of $47,700.00. Other than listing 

the factors considered in the negligence designation for this penalty, the Secretary has not 

presented any specific evidence supporting the justification for the specially assessed penalty. 

Upon review of the Special Assessment Narrative Form and 30 CFR § 100.3, it appears that the 

original penalty designations would have resulted in a regularly assessed penalty of $15,971.00. 

Resp. Ex. S. However, I have already held that Citation No. 8444809 shall be modified from 

reasonably likely, S&S and high negligence to unlikely, non-S&S and moderate negligence. 

After considering these modifications and the six 30 CFR § 100.3 penalty criteria, including Big 

Ridge’s history of previous roof control violations, I assess a civil monetary penalty of 

$3,000.00. 

36 FMSHRC Page 1016
B. Citation No. 8445037

 MSHA Inspector Eddie Kane issued Citation No. 8445037 on June 19, 2012 for an alleged 

violation of 30 CFR § 75.202(a) as a 104(a) citation. Tr. 300-01. The Citation alleges in part 

that: 

There is an area of unsupported roof on unit # 5, entry # 6 in the 

last open crosscut, at survey station 8+40. The unsupported area 

measured 9.75 feet by 6 feet with an unsupported coal brow in the 

affected area that measured 4.5 feet wide by 22 inches thick by 26 

inches tall. 

Sec’y Ex. 13, 1. 

 Inspector Kane determined that the condition was reasonably likely to result in injury, a 

resulting injury was likely to be fatal, the violation was S&S and that the violation was the result 

of Big Ridge’s moderate negligence. Sec’y Ex. 13. The Secretary has proposed a specially 

assessed penalty of $47,700.00. Sec’y Br., 38. 

1. Findings

 Inspector Kane issued Citation No. 8445037, because he determined that the 

overhanging coal brow was a violation of 30 CFR § 75.202(a) which mandates in part that: 

The roof, face and ribs of areas where persons work or travel shall 

be supported or otherwise controlled to protect persons from 

hazards related to falls of the roof... 

 The testimony from both parties clearly indicates that an overhanging coal brow 

approximately 4 feet wide, 9 feet long, and 26 inches thick was left during the mining cycle and 

not bolted sometime prior to June 19, 2012. Both the Secretary and Big Ridge have generally 

agreed that the overhang varied between 55 and 66 inches in height above the mine floor. Tr. 

307-08; Tr. 340. The photos entered into evidence by Big Ridge corroborate Compliance 

Supervisor Cummins’s statements that the majority of the unsupported overhang was only 55 

inches above the mine floor. Tr. 340; Resp. Ex. AA 4, 5. 

 Although Big Ridge has not contested the violation itself, they have argued that it would 

have been difficult for a miner to get under the overhang. Resp. Br., 67. As such, it is necessary 

to determine whether this unsupported area meets the standards definition of an area “where 

persons work or travel.” 30 CFR 75.202(a). Both parties testified that the coal brow was located 

at the last open crosscut in Unit 5, Entry # 6, which was an active face of the Willow Lake Portal 

Mine. On cross-examination, Compliance Supervisor Cummins confirmed that while miners 

generally walked down the centerline of the entry, it would have been possible, if not likely, for 

the coal brow to fall and trip out into the entry. Tr. 333, 337-38. As such, I hold that the Big 

36 FMSHRC Page 1017
Ridge violated 30 CFR 75.202(a) by failing to control or support the coal brow in an active 

entryway where miners worked and traveled. 

2. Gravity

 Inspector Kane designated Citation No. 8445037 as an S&S violation. However, I find 

that the Secretary has failed to establish the second and third elements of the Mathies S&S 

analysis and hold that Citation No. 8445037 is non-S&S. 

 I have already determined that Big Ridge violated 30 CFR § 75.202(a) and, thus, the 

Secretary has shown the violation of a mandatory safety standard. However, while the coal brow 

was not bolted, I have found that in this specific case, Big Ridge has sufficiently rebutted the 

Secretary’s determination that the coal brow contributed to a discrete safety hazard of a possible 

roof fall. 

 The Secretary argues that Inspector Kane’s notes and testimony regarding a crack and 

oozing water supports his determination that the brow was certain to fall. Sec’y. Br. 39-40. 

Both Big Ridge witnesses testified they did not observe any cracks and oozing water at the time 

of the citation. Tr. 330, 353. The photos entered by Big Ridge are not entirely clear, but they do 

not indicate any obvious gaps, water, or sluffage. Tr. 330-31; Resp. Ex. AA 4, 5. While I find 

that Inspector Kane must have seen something that caused him to note a crack and oozing water, 

it is clear that the coal brow was in fact stable at the time of the citation. Kane, Cummins, and 

Kanady all testified that when the continuous miner was brought in to remove the coal brow, it 

was necessary to turn the mining heads on to cut the overhang down. Tr. 319, 332-33, 354. 

Compliance Supervisor Cummins testified in detail that the operator first tried the normal 

method of tramming the continuous mining machine into the coal brow with the cutting heads 

off but the brow would not fall under pressure from the 20 ton machine. Tr. 332-33. 

Additionally, Kane himself testified that the surrounding roof area was generally sound and 

properly bolted up to the coal brow. Tr. 312, 323. Given this specific evidence regarding the 

stability of the coal brow and surrounding roof, I find that the Secretary has not shown the coal 

brow created a discrete safety hazard even when considering, as I must, normal continued mine 

operations. 

 Furthermore, the Secretary has not shown that even if the coal brow did fall, it was 

reasonably likely for miners to be struck by the coal brow and injured. Inspector Kane measured 

the overhang as standing between 55 and 66 inches above the mine floor. Tr. 307-08. 

Compliance Supervisor Cummins testimony that the majority of the overhang was only 55 

inches above the mine floor is supported by the photos entered into evidence by Big Ridge. Tr. 

340; Resp. Ex. AA 4, 5. Relying on Cummins’s statement that hard hats add 3 inches of 

clearance height to miners, I find that only a miner shorter than 5’-3” could walk under the 

highest part of the coal without stooping or crawling. Tr. 344-45. In fact, a miner would have 

to be 4’-9” or shorter to walk under the majority of the overhang closer to the rib. Furthermore, 

Big Ridge Supervisor Cummins credibly testified that miners were trained to walk down the 

centerline of entryways to increase visibility. Tr. 333-34. Given the height of the overhang, the 

absence of any evidence demonstrating a need for miners to pass under the relatively small 

36 FMSHRC Page 1018
overhang, and the fact that miners typically walked down the center of the travelway, I find that 

it was not reasonably likely for a miner or ram car to travel underneath the underhang. 

 The Secretary stated during cross-examination that it is not possible to predict how 

material in a roof collapse will fall and that miners further out into the entry would have been 

endangered by the coal brow against the rib. Tr. 337. While I do not disagree with the 

Secretary’s argument as a general proposition, the third element of the Mathies test requires the 

Secretary to show a reasonable likelihood that the hazard contributed to will result in an injury. 

Although, as I have ruled above, the Secretary has established a theoretical possibility of the 

overhang falling and striking workers further out into the entry, the Secretary has not provided 

sufficient evidence to raise the likelihood of a roof fall in this area actually striking a miner to the 

level of reasonably likely. 

 Additionally, the next workers to enter this location would have likely been continuous 

miner operators making their next cut into the Entry # 6 face. Section Foreman Kanady credibly 

testified that once in the area, the continuous miner operator would have identified and brought 

the overhang down as part of the normal mining cycle. Tr. 352. Inspector Kane testified that he 

thought Big Ridge personnel may continue to overlook the overhang. Tr. 320. However, I find 

Foreman Kanady’s testimony credible, particularly given that the coal brow obviously contained 

coal, providing additional motivation to Big Ridge personnel to quickly bring the overhang down 

and add to their production totals. 

 After considering evidence regarding worker travel in this area, I hold that the Secretary 

has failed to show that the overhang was reasonably likely to result in an injury. As such the 

Secretary has failed to satisfy the second and third elements of the Mathies test and I rule that 

Citation No. 8445037 shall be MODIFIED to non S&S.2 For these same reasons, I rule that the 

likelihood of injury for Citation No. 8445037 shall be MODIFIED to unlikely. 

 Inspector Kane designated Citation No. 8445037 as reasonably likely to result in a fatal 

injury. Kane based this determination partly upon a recent fatality at a nearby mine that involved 

a roof fall similar in size to the size of the coal brow. Tr. 314. While roof falls may certainly be 

fatal, Big Ridge Compliance Supervisor Cummins credibly testified that miners traveled down 

the center of the entry way and ram cars could not fit under the underhang. Tr. 333-34. As such, 

I find that if the coal brow were to fall, it would only be reasonably likely to result in an indirect 

glancing blow to a miner. For this reason, I rule that the type of injury for Citation No. 8445037 

shall be MODIFIED to permanently disabling. Additionally, as I have found that ram cars were 

2

 In modifying Order Nos. 8445037 and 8444809 from S&S to Non S&S, I am not 

requiring the Secretary to demonstrate roof instability in order to sustain an S&S determination. 

However, in both these instances, the Respondent has produced credible and sufficient evidence 

corroborated by the Secretary’s witnesses to show that the roof was in fact stable at these areas. 

Tr. 319, 332-33, 354, 389, 410. As such, I have determined that in these specific instances, 

although Big Ridge violated the specific mandates of the Willow Lake roof control plan, these 

violations did not in fact create or contribute to a discrete safety hazard as required by the second 

element of the Mathies test. 

36 FMSHRC Page 1019
not able to pass under the coal brow, I uphold the Inspector Kane’s determination that the 

violation affected one person. 

3. Negligence

 Inspector Kane determined that this violation was the result of Big Ridge’s moderate 

negligence. Kane based this designation partially on previous meetings with Big Ridge 

regarding the need to control and or support coal brows. Tr. 314-15. Kane also noted in his 

inspection notes and testified that Section Foreman Kanady told him he had set sights in this 

entry twenty minutes before Inspector Kane arrived, but that the rock dust and perspective from 

the entry prevented him from noticing the overhang. Tr. 312, 317. 

 At hearing, Section Foreman Kanady disputed Kane’s assertion that he had set sights in 

this area, and testified that he had not set sights in any area that morning and had not yet traveled 

the # 6 Entry. Tr. 350-51. Big Ridge further argues that the negligence designation should be 

reduced to low or none based upon Kanady’s testimony and lack of management knowledge. 

Resp. Br., 70-71. 

 The Secretary argues that as the area had been previously scooped, dusted and examined 

at the beginning of the shift, Big Ridge management had ample opportunity to identify the 

overhang in the two and a half hours after the area was cut and a negligence designation of 

moderate or high is warranted. Sec’y Br. 41-42. 

 The Mine Act defines 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 CFR § 100.3: Table X. 

 In this situation, Big Ridge had been cited for this standard 119 times in the previous two 

years and at an unspecified time, Inspector Kane had conducted close-out meetings focusing on 

the hazards of coal brows. Tr. 315. However, the coal brow had only been created two and a 

half hours before Inspector Kane traveled Entry # 6 and rock dust made the coal brow difficult to 

see as miners approached the face. Therefore, I find that mitigating circumstances made it 

difficult for Big Ridge to promptly identify the hazard. Thus, I find that the violation was the 

result of Big Ridge’s moderate negligence. 

4. Penalty

 The Secretary has proposed a specially assessed penalty of $47,700.00 for Citation No. 

8445037 as originally written. The Special Assessment Narrative form indicates that Citation 

No. 8445037 would have received a regularly assessed penalty of $15,971.00. Resp. Ex. CC. I 

have already ruled that the Citation No. 8445037 shall be modified from reasonably likely to 

unlikely, from fatal to permanently disabling, and from S&S to non-S&S. 

36 FMSHRC Page 1020
 Other than noting Big Ridge’s history of 30 CFR § 75.202 violations and Inspector Kane’s 

previous focus on controlling coal brows when supporting their negligence designation, the 

Secretary has not provided any specific support for the specially assessed penalty. I have found 

that Citation No. 8445037 was unlikely to result in injury and non-S&S. I have determined that 

the violation was the result of Big Ridge’s moderate negligence. Inspector Kane testified that 

Big Ridge immediately abated the condition by bringing the overhang down with the continuous 

miner. Tr. 318-19. After considering the six statutory penalty criteria and reviewing the 

standard penalty tables provided in 30 CFR § 100.3, I assess Big Ridge a civil monetary penalty 

of $2,000.00 for Citation No. 8445037.

C. Citation No. 8445268

 MSHA Inspector Lampley issued Citation No. 8445268 on August 23, 2012 for an alleged 

violation of 30 CFR § 75.512. Tr. 101. Lampley alleged within the Citation that: 

The company 301 welder, in service and energized at the unit # 1 

battery barn has not been frequently examined, tested, and properly 

maintained. Multiple hazards were found on the 480 V.A.C. 

power cable for the welder, reference citation # 8445267, in which 

three damaged areas were found... Upon inspection of the weekly 

electrical examination book, records indicate the company #01 

welder has not been examined since 08/06/2012. The operator 

engaged in aggravated conduct in that management is directly 

responsible for completion of required weekly electrical 

examinations... 

Sec’y Ex. 15, 1-2. 

 Lampley determined that the violation was reasonably likely to cause an injury, the 

resulting injury would be fatal, the violation was S&S, affected one person, and was the result of 

Big Ridge’s high negligence. Sec’y Ex. 15, 1. Lampley also determined that the violation was a 

104(d) (1) unwarrantable failure to comply with a mandatory safety standard. Sec’y Ex. 15, 1. 

The Secretary has proposed a regularly assessed penalty of $25,810.00. Sec’y Br., 20. 

1. Findings

 30 CFR § 75.512 and subsection 30 CFR § 75.512-2 require mine operators to inspect 

equipment “at least weekly.” 30 CFR § 75.512; 30 CFR § 75.512-2. Inspector Lampley credibly 

testified and introduced inspection logs that showed Big Ridge failed to inspect the welding 

machine located at the No. 1 battery barn for a period of 17 days. Tr. 118; Sec’y Ex. 16 A-C. 

Big Ridge management acknowledged that the required weekly inspection for the welder was 

indeed missed. Tr. 139. As such, I hold that Big Ridge violated 30 CFR § 75.512 by failing to 

inspect the welding machine on a weekly basis. 

36 FMSHRC Page 1021
2. Gravity

 As an initial matter, I take note that Inspector Lampley issued Citation No. 8445267 for 

the damaged electrical cable itself on the same day as Citation No. 8445268. Sec’y Ex. 15, 1. 

Big Ridge has accepted and paid the civil monetary penalty for Citation No. 8445267.3 As such, 

I have focused on Big Ridge’s knowledge of, and negligence in failing to inspect the welder 

while taking note of the actual hazards that developed during the missed inspection time period 

as evidence of the violation’s gravity. 

 I uphold Inspector Lampley’s designation of Citation No. 8445268 as an S&S violation. 

The first element of the Mathies test requires a violation of a mandatory safety standard, and I 

have already found that the failure to inspect the welding machine for a period of 17 days was a 

violation of 30 CFR § 75.512. The second Mathies element is a contribution to a discrete safety 

hazard. By failing to inspect the welding machine and its power cable, Big Ridge allowed 

damaged electrical components to go unrepaired, exposing miners to possible electrocution, fire, 

and ignition hazards. 

 The third Mathies element requires a showing that a significant injury is reasonably likely 

to occur under normal mining operations. The Secretary contends that an electrocution injury 

was reasonably likely to occur through one of several different possibilities. Sec’y Br., 22-23. 

According to the Secretary, a miner may have unknowingly contacted one of the damaged areas 

of the cable without realizing the copper conductors were exposed, or have been electrocuted if 

they contacted the metal a-frame hoist or welding trailer with the damaged area in contact with 

the metal frame. Sec’y Br. 23. 

Big Ridge argues that the violation was not reasonably likely to lead to a significant 

injury as Mr. Pinkston, the normal examiner, would have inspected the welding machine on his 

return and identified the damaged areas. Resp. Br., 30. Big Ridge also argues that the damaged 

areas were not reasonably likely to cause a significant injury because miners did not normally 

contact the power cable directly while it was energized. Resp. Br., 30-31. 

 After considering both parties testimony, I find that the missed electrical inspection did 

make it reasonably likely that a significant injury would occur. Inspector Lampley credibly 

testified that the No. 6 gauge cable was thin for a 480 VAC power supply and easily susceptible 

to damage. Tr. 123. Indeed, after 17 days this cable was damaged in three different places, 

exposing copper conductors in two locations. Tr. 105, 107. Although Big Ridge contends that 

Mr. Pinkston would have eventually inspected the cable and identified these hazards, it is unclear 

how soon Mr. Pinkston would have inspected the welding machine due to the confusion 

regarding inspection responsibilities. 

 Additionally, although Maintenance Foreman Melvin credibly testified that miners did not 

normally handle the energized power supply cable, Big Ridge did not state that they had a policy 

in place to prevent such contact with the energized cable or the metal frame of the welding 

3

 MSHA website http://www.msha.gov/drs/ASP/MineAction.asp Mine ID 1103054 

08/23/2012 Citation Status. 

36 FMSHRC Page 1022
machine/A-frame hoist during welding operations. Tr. 163. I also take note that another 

Commission ALJ has previously upheld an alleged violation of 30 CFR 75.512 at the Willow 

Lake Portal mine as S&S despite the presence of safety protocols when the judge found the 

protocols did not prevent the possibility of an electrocution. Big Ridge Inc., 33 FMSHRC 2238, 

2248-49 (Sept. 2011) (ALJ Melick). In this situation, hazards could and actually did develop in 

the time period of the missed inspection. Tr. 104-05. Therefore, given that the time period for the 

next welder inspection was uncertain and miners routinely worked around, and with, the three 

damaged areas on the 480 VAC power cable, an electrocution was reasonably likely to occur. 

Tr. 124, 170-71. 

 The fourth Mathies element requires a reasonable likelihood that a resulting injury will be 

reasonably serious. Both Inspector Lampley and Supervisor Mullins testified that a miner who 

contacts an exposed 480 VAC conductor could suffer a fatal shock. Tr. 121, 150. While the 

ground fault protection system for the welder may have mitigated the potentially fatal hazard of 

uncorrected damaged electrical components, it is clear that failing to inspect and repair the 

damaged power cable exposed miners to a reasonable likelihood of suffering a reasonably 

serious injury. 

 As the evidence produced at hearing supports all four elements of the Mathies formula, I 

hold that the Secretary has established that Citation No. 88445268 was an S&S Violation. 

 As stated above in my analysis of the third Mathies element, I find that the missed 

inspection was reasonably likely to cause a significant injury as the missed inspection allowed 

damage to a high voltage power supply cable and welding machine to go unrepaired. I also find 

that due to the high voltage capacity of the 480 VAC damaged power cable, a resulting injury 

was likely to be fatal. I additionally find that the missed examination exposed the one worker 

observed by Inspector Lampley in the battery barn to the violative condition. Tr. 124. 

3. Negligence

 Big Ridge personnel failed to inspect the welder at the unit #1 battery barn when 

inspection duties were transferred from the normal examiner, Mr. Pinkston, to a qualified 

replacement examiner, Mr. Schutt. Tr. 158. Mr. Schutt was not aware that the welder was 

located nearby the battery barn because the battery barn inspection log did not contain an entry 

for the welder. Tr. 159. As such, Mr. Schutt did not inspect the welder and management 

officials that reviewed the inspection logs did not notice the missed inspection because the 

welder did not have a formal entry in either the battery barn log or the outby equipment log. Tr. 

167, 173. The Secretary has alleged that these circumstances show Citation No. 8445268 was 

the result of high negligence on the part of Big Ridge. On the contrary, Big Ridge has argued 

that these facts should motivate this court to reduce the negligence designation to either moderate 

or low. The Mine Act defines 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 CFR § 100.3: Table X. 

36 FMSHRC Page 1023
 The two examiners responsible for inspecting the welder, Mr. Pinkston and Mr. Schutt, 

both appeared to have carried out their individual inspection duties in good faith. Tr. 157-58. 

However, I find it concerning that Big Ridge management did not have a more accurate method 

of ensuring inspection of mobile equipment other than relying on individual examiners to 

manually write in mobile equipment whenever it was within their inspection area. Tr. 172. I 

also note that Inspector Lampley testified that he and other inspectors had issued similar citations 

for failure to inspect equipment within the last couple of years. Tr. 130. 

 As testified to by Big Ridge witnesses, the size of the Willow Lake Portal mine and the 

sheer number of different pieces of equipment made it difficult for shift and area level foreman 

to track and inspect each piece of equipment. Tr. 171-72. Given Big Ridge’s status as a large 

sophisticated operator, Big Ridge should have known that the very nature of mobile equipment 

and the size of the Willow Lake Portal mine required a more fail-safe inspection tracking method 

other than penciled-in inspections on various different inspection logs. However, I do 

acknowledge that Mr. Pinkston’s temporary absence contributed to the missed inspection. I also 

credit Big Ridge’s inspection supervision efforts, as management reviewed the inspection log on 

a daily basis to ensure all listed hazardous conditions were promptly corrected. Tr. 162. 

 As such, while I find that Big Ridge should have identified the missed inspection; I also 

hold that Mr. Pinkston’s absence and Big Ridge’s efforts to ensure prompt corrective action for 

completed inspections stand as mitigating circumstances. Therefore, the negligence designation 

for Order No 8445268 is MODIFIED from high to moderate. 

4. Unwarrantable Failure

 I hold that the Secretary has not produced sufficient evidence to satisfy the five factor test 

considered by the Commission in evaluating unwarrantable failure designations. Consolidation 

Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). 

a. Extent and Duration of the Violation

 Order No. 8445268 involved a failure to inspect the welding machine at the No. 1 battery 

barn for a period of 17 days. Tr. 118. Due to the construction of the governing statute Big Ridge 

was 4 days overdue in inspecting the welding machine. Resp. Br., 33. Big Ridge Safety 

Manager Grounds credibly testified that Mr. Schutt had properly inspected all other pieces of 

equipment at the battery barn during Mr. Pinkston’s absence. Tr. 142. Although Inspector 

Lampley testified that other citations for failure to inspect equipment had previously been issued 

at the Willow Lake mine, it does not appear that there were any other failures to inspect 

equipment in this area in the immediate timeframe. 

b. Notice to the Operator

 As I have just noted, Inspector Lampley credibly testified that he had previously cited Big 

Ridge for failure to inspect equipment and emphasized the importance of properly conducting 

inspections with maintenance foremen in closeout meetings. Tr. 130. 

36 FMSHRC Page 1024
c. Prior Abatement Efforts

Although Big Ridge had not developed a formal program to ensure inspection 

compliance in the event of an examiner’s absence, Big Ridge did appoint a qualified miner to 

conduct Mr. Pinkston’s inspections during his absence. Tr. 152. Additionally, Big Ridge also 

instituted a voluntary back-check system designed to ensure listed hazards were promptly 

corrected. Tr. 162. 

d. Obviousness of the Hazard and Degree of Danger

 As the welder inspections had previously been penciled-in to the outby equipment log 

rather than formally entered the battery barn inspection book, the missed inspection was not 

obvious to Mr. Schutt or Big Ridge management who reviewed the logs. Tr. 160. However, as I 

have previously noted, the multiple entry logs and policy of allowing pencil inspections should 

have alerted upper management that an inspection could be missed without an examiner realizing 

his oversight. I have already held that the missed inspection exposed miners to a high degree of 

danger as it permitted a damaged high voltage power cable to go unrepaired for multiple shifts. 

e. Operator’s Knowledge of the Violation

 Big Ridge did not have actual knowledge of the missed inspection as Mr. Schutt relied 

upon the battery barn inspection log as the complete list of equipment in that area. Tr. 160. 

Additionally, Big Ridge management that reviewed inspection logs would not have known to 

look for a missed welder inspection as the welder had previously only been penciled-in to the 

outby inspection log. Tr. 161. For these reasons, I strongly urge Big Ridge to consider a more 

failsafe comprehensive inspection log. However, it does not appear that Big Ridge was aware of, 

or had been notified by MSHA of the need to improve its inspection logs at the procedural level. 

 As I have found that the missed examination was not extensive, did not exist for a 

significant period of time relative to the inspection cycle, was not obvious to mine examiners or 

immediate management, and that Big Ridge had undertaken genuine effort to improve inspection 

follow-up, I hold that the violation was not due to a reckless disregard or serious lack of 

reasonable care in conducting inspections. For these reasons, Order No. 8445268 was shall be 

MODIFIED from a 104(d)(2) order to 104(a) citation. 

5. Penalty Assessment

 The Secretary has proposed a regularly assessed penalty of $25,810.00 for Citation No. 

8445268. As I have held above, Citation No. 8445268 shall be modified from a high negligence 

104 d(2) unwarrantable failure Order to a moderate negligence 104(a) Citation. Big Ridge 

abated the violation by completing the required electrical examination for the welder. Sec’y Ex. 

1, 3. After accounting for these modifications, considering the six statutory penalty criteria, 

including the hazard of an uninspected high voltage cable, and reviewing the 30 CFR § 100.3 

penalty tables, I assess a civil monetary penalty of $15,000.00. 

36 FMSHRC Page 1025
VI. ANALYSIS DOCKET LAKE 2012-251:

A. Order No. 8444863

 MSHA Inspector Scott Lee issued Order No. 8444863 as a 104(d)(1) Order on August 

20, 2012 at 9:45 a.m. for an alleged violation of 30 CFR § 75.370 (a)(1). Tr. 429. The Order 

alleges that: 

C Crew (Midnight A Shift) was not mining coal according to the 

mines approved ventilation plan in unit # 2 (MMU 002). The Plan 

requires that a spray block of 5 have 5 sprays available with at 

least 3 of those sprays working. The bottom left block on the left 

side of the cutting head had 1 of its 5 sprays plugged, (with a steel 

plug). Also a block of 3 sprays must have 3 sprays available with 

2 of those working at a minimum. The block of 3 sprays just 

behind the cutting head on the left side of the machine had one of 

its sprays plugged with wood, leaving only 2 available, none of 

those sprays were working properly at start of “A” shift, (days). 

There was a blown water line to these sprays that had to be 

repaired at start of shift. The mine plan also requires a block of 3 

sprays be centered in the throat of the conveyor. This miner had 2 

blocks of 3 sprays on either side of the conveyor in this location, 

only 1 side was working and not adequately covering the width of 

the conveyed coal... A spray count was done at 1300, (6 hours 

into the shift) the repairmen at that time had only been able to 

repair 32 of the 35 sprays required to operate with a minimum 

spray count. The crew foreman on unit 2 (MMU 002) engaged in 

aggravated conduct constituting more than ordinary negligence in 

that he allowed this condition to exist while mining. 

Sec’y Ex. 17, 1-2. 

 Inspector Lee determined that this violation was reasonably likely to result in an injury, 

that the resulting injury would be expected to be permanently disabling, the violation was S&S, 

two persons were affected, the violation was the result of Big Ridge’s high negligence, and that 

the violation constituted an unwarrantable failure to comply with a mandatory safety standard. 

The Secretary has proposed a specially assessed civil monetary penalty of $52,500.00. 

30 CFR § 370 (a) (1) requires that: 

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. 

36 FMSHRC Page 1026
Inspector Lee issued this Order after he attempted to obtain a routine dust pump sample for the 

#242 miner and was unable to do so because the day shift was unable to get the machine up to 

compliance after six hours of repair work. Tr. 433-35. In particular, Lee alleged Big Ridge had 

violated 30 CFR § 370(a)(1) and the mine’s ventilation plan due to 1) the presence of spray 

plugs, 2) an unapproved throat spray configuration, and 3) his determination that the Midnight 

crew must have operated with an insufficient total number of sprays. Tr. 439, 441, 450. 

1. Spray Availability

 According to Inspector Lee, the Willow Lake ventilation plan required spray banks to 

have all sprays available, if not actually operational. Tr. 438-39. For this reason, Lee considered 

the presence of steel and wood plugs at several of the spray nozzles to be an unacceptable 

violation of the mine’s ventilation plan. Tr. 439. On cross examination, Lee confirmed that the 

plan stated that 3 out of 5 sprays in a bank of 5 and 2 out of 3 sprays in a bank of 3 must be 

“operational”, and did not actually state that all sprays must be “available.” Tr. 465. However, 

Lee maintained that the diagram in the ventilation plan depicted a certain number of sprays at 

each bank. Id. Lee stated that this diagram indicated that while the plan allowed a certain 

number of sprays to malfunction, it was necessary to have all sprays “available.” Id. 

 Big Ridge argues that Inspector Lee’s interpretation of the ventilation plan is incorrect 

and unsupportable, as neither the diagram nor the text of the ventilation plan make any explicit 

reference to a minimum number of “available” sprays. On cross-examination, Big Ridge pointed 

out that there is no functional difference between a spray clogged with sediment and a spray that 

is mechanically plugged. Resp. Br., 88; Tr. 465. Additionally, Big Ridge contends that the 

plugged sprayer is in fact available, as an operator can replace the plug with a new spray in 

several minutes with simple hand tools if needed. Tr. 469, 519. 

 I find that the presence of plugs on the continuous miner was not in itself a violation of 

the 30 CFR § 370 (a) (1) or the mine’s ventilation plan. The Willow Lake Ventilation Plan 

neither prohibits the use of plugs nor mandates that all sprays be “available” at all times. Sec’y 

Ex. 19. The plan does require a certain number of sprays at various locations on the continuous 

miner, but allows the miner to operate as long as a certain fraction of the sprays in that bank are 

“operational”. Sec’y Ex. 18, 27. 

 Inspector Lee’s determination that the diagram’s depiction of five sprays prohibits the 

use of spray plugs is illogical. According to Lee, a bank of five sprays with one sediment 

clogged spray is acceptable but a bank of five sprays with one mechanically plugged spray is 

unacceptable. Tr. 466-67. This interpretation of the plan would not improve dust control at the 

continuous miner or at the Willow Lake Portal mine. Indeed, as alluded to by Inspector Lee, the 

use of a plug at a damaged spray head may allow a mining crew to maintain proper water 

pressure across the entire machine. Tr. 458. Additionally, although Lee referenced previous 

meetings regarding the need to maintain sprays, Lee did not indicate he had previously instructed 

Big Ridge not to use spray plugs. Other than relying on Lee’s interpretation of the ventilation 

plan, the Secretary has not pointed to any program policy manual or other agency publication 

that warns against the use of spray plugs. 

36 FMSHRC Page 1027
 As the ventilation plan did not prohibit the use of plugs, the Secretary did not introduce 

evidence demonstrating that MSHA had prohibited the use of spray plugs at the Willow Lake 

Portal mine, and the Secretary’s interpretation is not one a reasonably prudent miner would have 

anticipated, I hold that the presence of plugs was not in itself a violation of the mine’s ventilation 

plan or 30 CFR § 370 (a) (1). 

2. Throat Spray Configuration

Inspector Lee testified that the unit #2 miner had two separate banks of three sprays 

offset to either side of the conveyor belt at the throat, rather than the one bank of three sprays 

centered on the conveyor belt depicted in the mine’s ventilation plan. Tr. 441. Lee confirmed 

that positioning dual spray banks to the side of the conveyor belt was not a hazard in and of 

itself, but he maintained that the failure to obtain MSHA approval constituted a violation. Tr. 

441, 444-45. 

 Big Ridge Safety Compliance Manager Todd Grounds testified that nearly every 

continuous mining machine at the Willow Lake mine had the dual offset throat spray 

configuration. Tr. 485. Grounds stated that the continuous miners were configured this way by 

the factory and that MSHA Inspectors, including Inspector Lee, had never previously issued a 

citation regarding the offset spray configuration for the 242 machine or any other continuous 

miner. Tr. 485-86. 

 I find that the offset dual spray block configuration was not in itself a violation of the 

mine’s ventilation plan or 30 CFR § 370 (a) (1). As pointed out by Big Ridge and confirmed by 

Inspector Lee, the dual spray block provided additional sprays and adequate coverage of the 

conveyor belt when the sprays were working. Resp. Br., 91; Tr. 441. As such, “a reasonably 

prudent person familiar with the mining industry and the protective purposes of the standard” 

could have determined that while the diagram required a minimum of three sprays centered on 

the throat, it was acceptable to position a total of six sprays to the sides of the conveyor belt in 

order to ensure proper coverage and avoid damage. Energy West Mining Co., 17 FMSHRC 

1318. Indeed, Inspector Lee himself explained at length that: 

Typically they’ll move the (throat spray) to the side like that, 

because if they put them dead center, if they’re not just right, a 

rock or something will come through there and knock them out. 

So they move them on either side which is fine, because, you’re 

just trying to knock dust down there in that conveyor. 

Tr. 442. 

 The Willow Lake ventilation plan did explicitly require that “Any changes or deviations 

in the plan require approval by the district manager before implementation.” Tr. 443. However, 

it is also clear that this offset dual spray bank set-up was installed in the majority of the 

continuous miners at the Willow Lake Portal mine and had been observed by MSHA inspectors 

on numerous previous occasions without incident. Tr. 485-86. Indeed, as emphasized by 

Inspector Lee, he himself had inspected and collected dust samples from continuous mining 

machines over a dozen times in the 2012 fall quarter. Tr. 457, 459, 467. As MSHA performed 

36 FMSHRC Page 1028
regular and extensive dust control checks on the continuous mining machines at the Willow Lake 

Portal Mine, and had never previously raised any concerns regarding this common and obvious 

condition, it was reasonable for Big Ridge to assume that the dual spray block configuration 

complied with the mine’s ventilation plan and 30 CFR § 370 (a) (1). Good Construction, 23 

FMSHRC 995, 1005 (Sept. 2011). 

 As such, I hold that the dual spray block configuration at the throat was not a violation 

because it met the minimum requirements of the ventilation plan and MSHA had never provided 

Big Ridge any advance notice that this common configuration was impermissible. 

3. Midnight Shift Operation

 Inspector Lee alleges within Order No. 8444863 that the midnight shift operated the #242 

continuous miner in violation of the mine’s ventilation plan and 30 CFR § 370 (a)(1). Tr. 450. 

Lee based this conclusion on the presence of a blown water line at the beginning of the day shift 

and the day shift’s inability to achieve the required 80% level of functioning sprays in six hours 

of repair time. 

 Lee testified that he had persistent difficulties obtaining dust samples from continuous 

mining machines at the Willow Lake Portal mine. Tr. 434. Lee had only been able to gather 3 

valid samples out of 13 attempts during the 2012 fall quarter. Tr. 434. Lee stated that he was 

often not able to collect a sample at all because Big Ridge personnel were unable to meet the 

requirements of their dust plan, including sufficient spray nozzles. Tr. 435, 459. Lee stated that 

that he was confident Big Ridge only performed the lengthy dust parameter repairs during 

MSHA inspections, and simply ran out-of-compliance when MSHA was not present. Tr. 460. 

 I find that the Secretary has not produced sufficient evidence to support Lee’s 

determination that the August 19-20 midnight shift operated with insufficient sprays or water 

pressure. Lee was not present during the midnight shift and did not question any midnight shift 

employees regarding August 19-20 shift operations. Tr. 463. Lee assumed that the presence of 

the broken water line at the beginning of the morning shift indicated that the midnight shift had 

produced coal without the water line or sufficient water pressure. Tr. 450. However, midnight 

Section Foreman Davis credibly testified that the water line blew at the end of the shift and that 

the crew reported the damage to the maintenance department for repair. Tr. 507-08. Indeed, Lee 

confirmed that the day shift was already repairing the damaged line at the start of the day shift 

when he first arrived at the # 242 miner. Tr. 450; Sec’y Ex. 17. As such, it appears that Big 

Ridge considered the blown water line a necessary repair item and was working in earnest on the 

line before Inspector Lee began to inspect the machine. 

 Additionally, Lee’s conclusion that the midnight shift must have run without an adequate 

number of sprays is not supported by sufficient evidence. Lee based this conclusion on the day 

shift’s inability to obtain 35 working sprays after 6 hours of repair time. However, Section 

Foreman Davis credibly testified that he personally checked the #242 miner at the beginning of 

the August 19-20 shift and observed 36 working sprays. Tr. 514. Davis also stated that the 

miner operator checked the sprays between each cut and that the operator could quickly repair 

malfunction sprays if necessary. Tr. 506. 

36 FMSHRC Page 1029
 At hearing, Lee stated that the day shift could not get spray nozzles to stay in certain 

spray heads because the threads were worn. Tr. 439. However, on cross-examination Lee stated 

he was not entirely certain that spray heads on the #242 had blown out under pressure. Tr. 469. 

While I generally found Lee a credible witness, Lee did not note worn spray threads or blown out 

spray nozzles in the text of the citation or within his inspection notes. Additionally, Compliance 

Supervisor Grounds testified that repair difficulties were due to the spray nozzles clogging 

quickly with in-line debris. Tr. 497. Indeed, Inspector Lee himself testified that debris within the 

water line was a common cause of clogged sprays and could be caused by the installation of a 

new water line. Tr. 474-75. In this situation, both parties agreed that a main feeder bull line and 

the continuous miner’s water line had blown and been repaired in the previous 12 hours. Tr. 

453, 510. 

 After reviewing all available evidence, I find that the day shift’s difficulty in obtaining a 

sufficient number of sprays was most likely due to recent damage to the water lines that fed the 

sprays. While I acknowledge Inspector Lee’s concerns regarding his inability to gather valid 

dust samples in the past, neither Lee nor the Secretary presented sufficient evidence to support an 

inference that Big Ridge personnel were ignoring or postponing necessary dust parameter 

repairs. Therefore, I credit the testimony of Davis who observed the #242 continuous miner in 

operation during the August 19-20 midnight shift over the inferences of Inspector Lee who was 

not present. For these reasons, I hold that the Secretary has not produced sufficient evidence to 

establish that the midnight shift violated the mine’s ventilation plan or 30 CFR § 370 (a) (1). 

 As I have found that neither the spray plugs nor the dual bank spray configuration 

violated the mine’s ventilation plan in themselves, and that the Secretary has failed to 

demonstrate that the midnight shift operated the #242 miner with an insufficient amount of 

sprays or water pressure, Order No. 8444863 is VACATED. 

VII. ANALYSIS DOCKET LAKE 2012-307

A. Order No. 8445336

 MSHA Inspector Lampley issued Order No. 8445336 for an alleged violation of 30 CFR 

§ 75.403 on October 29, 2012 as a 104 (d) (2) unwarrantable failure to comply with a mandatory

safety standard. Tr. 174. Lampley alleged within the Order, in part, that: 

As the result of lab analysis, 10 out of 24 (41.67%) samples 

collected in rock dust Survey #1 contain less than the required 80 

percent incombustible content. Rock dust survey # 1 was collected 

on October 23, 2012 in the second right panel off the 5th North 

Sub-main, Unit # 2 (MMU-002 & 012). The affected areas of the 

mine floor are black with pulverized coal mixed into the clay. 

Sec’y Ex. 21, 1. 

36 FMSHRC Page 1030
 Lampley determined that the violation was unlikely to result in an injury, that any 

resulting injury would be fatal, the violation was non-S&S, 4 persons were affected, the violation 

was the result of Big Ridge’s high negligence, and that the violation constituted a 104(d) (2) 

unwarrantable failure to comply with a mandatory safety standard. Sec’y Ex. 21, 1. The 

Secretary has proposed a regularly assessed penalty of $7,774.00. Sec’y Br., 26. 

1. Findings

 At the time of Order No. 8445336, 30 CFR § 75.403 required 90% of samples taken in a 

rock dust survey to have an incombustible content higher than 80%. Inspector Lampley credibly 

testified and provided documentation demonstrating that only 14 of the 24 samples he collected 

at the Old 2nd Right Area met the 80% incombustible content requirement. Tr. 185. Thus, only 

58% of the samples taken by Lampley on the October 29 survey met the standard and the survey 

did not meet the requirements of 30 CFR § 75.403. 

 Although Big Ridge pointed out that Lampley did not collect samples from the roof at any 

of the sample locations, they did not contradict Lampley’s assertion that his sampling methods 

were acceptable under MSHA regulations and the Mine Act. Tr. 216. Big Ridge has also stated 

that the average incombustible content of all 24 samples was 80.8% when considered as a 

collective whole. Tr. 229. However, Safety Director Barras confirmed that the standard required 

operators to maintain an 80% incombustible level at each sample location throughout all required 

areas. Tr. 236. As such, I hold that the Secretary has established that Big Ridge violated 30 

CFR § 75.403 by failing to maintain the mandatory level of rock dust throughout the sampled 

Old 2nd Right Area. 

2. Gravity

 Inspector Lampley found that Citation No 8445336 was unlikely to result in injury due to 

the lack of ongoing mining activities at this area. However, he credibly testified that the 

scheduled removal of remaining equipment would require powered machinery that could 

produce an ignition source. Tr. 203-04. Lampley also stated that that the insufficiently rock 

dusted area extended for several hundred feet and contained enough combustible material to 

sustain a coal dust explosion. Tr. 206. Lampley explained that a coal dust explosion of that size 

would generate a massive amount of heat and gases that could cause a fatal accident. Tr. 205. 

 Big Ridge argues, in essence, that there was no likelihood of ignition or injury because Big 

Ridge had stopped active mining in that area. Resp. Br., 45. Big Ridge states that Lampley did 

not provide a specific mechanism for ignition other than referencing the presence of electrical 

equipment. Id. However, I find that Lampley provided adequate support for his unlikely and 

fatal gravity designations by detailing the high combustible content of the samples gathered near 

the face, referencing the removal plans for electrical mining equipment including the continuous 

mining machine, and explaining the severe effects of a resulting explosion. I also find that 

Lampley credibly testified removal efforts would typically involve a crew of four miners, 

justifying his designation of four persons affected. 

36 FMSHRC Page 1031
3. Negligence

 The Mine Act defines high negligence as actual or constructive knowledge of the violative 

condition without mitigating circumstances. Within the citation itself, Inspector Lampley noted 

that several of the failing areas were black in color and easily visible, and that MSHA had 

notified Big Ridge on Sept 26, 2012 that greater efforts were required to comply with rock dust 

standards. Sec’y Ex. 21. Lampley testified to all these conditions at hearing and added that 

MSHA personnel had informed Big Ridge prior to this survey that they had not yet surveyed the 

Old North panel and that it would be necessary to do a good job rock dusting that area. Tr. 209. 

 Big Ridge argues that the Secretary has failed to establish a nexus between the September 

26 close out meeting, previous failed surveys, and Order No. 8445336. Resp. Br., 46-47. Big 

Ridge contends that the violative condition resulted from the unusual nature of the halted mining 

activities at the fault location. Resp. Br., 38-39. Big Ridge also contends that the increase an 

rock dust applied per ton of coal produced over the previous years demonstrates that Big Ridge 

was making serious efforts towards compliance with the standard. Tr. 233-34; Resp. Ex. EEE. 

Big Ridge argues that it would be improper to rely on Lampley’s characterization of the failed 

areas as very dark in color as an indication of Big Ridge’s negligence, as Lampley himself did 

not issue a citation until he received official lab results. Resp. Br., 43-44. 

 I find that Big Ridge was aware or should have been aware of the violation, and the 

conditions listed by Big Ridge are not mitigating circumstances in terms of Big Ridge’s 

negligence. Mining operations had stopped four days before Lampley conducted the survey, and 

yet 10 of the 26 samples taken failed to meet the standard, and the area closest to the abandoned 

working face was dark in color and obviously in need of additional rock dust. Tr. 182-83, 186, 

200-01. Lampley credibly explained that he waited on the official lab results, not because he 

was uncertain about whether individual samples would fail, but because he was following 

standard protocol and allowing for the possibility that several individual samples could fail and 

the overall survey still pass if 90% of the samples were compliant. Tr. 218. 

 Although Big Ridge contends that previous meetings and citations regarding rock dust 

levels did not notify management regarding this specific condition, I find that MSHA provided 

ample notice of the specific need to adequately rock dust the old North area. Inspector Lampley 

credibly testified that in addition to the Sept 26 meeting following a failed dust survey, MSHA 

had also specifically informed Big Ridge that this panel was due for dust sampling and that 

greater efforts would be needed to achieve compliance as several recent surveys in adjacent areas 

had failed. Tr. 208-09. Big Ridge criticizes Lampley’s testimony regarding these meetings as 

lacking specificity. However, I found Lampley’s testimony regarding meetings in the months 

prior to this citation entirely credible and sincere. 

 Additionally, I find that the significant increase in rock dust application in terms of pounds 

applied/coal tonnage mined from 2009-2012 at the Willow Lake mine is not a mitigating factor 

for this Order. Tr. 233-34; Resp. Ex. EEE. While this metric may serve as a useful tool for Big 

Ridge management in monitoring mine-wide rock dusting efforts over the course of a year, it 

tells me very little about Big Ridge’s effort to improve rock dust levels following the Sept 26, 

2012 meeting in which Big Ridge was notified that a mining area at the Willow Lake mine had 

36 FMSHRC Page 1032
failed to meet the standards of 30 CFR § 75.403. Similarly, I do not find the presence of a 

geologic fault at this area as a mitigating circumstance that excuses the lack of mandatory levels 

of rock-dust in a required area. Although the fault may have forced Big Ridge to change their 

standard pattern of equipment removal/belt advancement, Big Ridge Safety Manager Barras 

confirmed that at the time of the Order, four days and 12 shifts had already passed since mining 

activities had been halted at the fault. Tr. 237. As such, Big Ridge had adequate time to meet 

the requirements of 30 CFR § 75.403 through some combination of dusting equipment, yet failed 

to do so. 

 For all these reasons, I hold that Order No. 8445336 was the result of high negligence on 

the part of Big Ridge, as they should have been aware of the violation and there were no 

legitimate mitigating circumstances. 

4. Unwarrantable Failure

For Order No. 8444536, I find that the Secretary has produced sufficient evidence to 

satisfy the five factor test considered by the Commission in evaluating unwarrantable failure 

designations. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). 

a. Extent and Duration of the Violation

The Secretary established that the Big Ridge had stopped actively mining at the Old 

North face four days before Lampley conducted the survey, and the band of failed samples 

extended for several hundred feet. Tr. 182-83, 206. These conditions demonstrate that the 

condition had existed for a significant period of time and that the violation was extensive. Big 

Ridge’s attempt to cite the overall 80% incombustible content of the entire survey as evidence 

the condition was not extensive is misleading. This contention ignores the requirements of the 

standard itself and fails to acknowledge that six of the ten failed samples were significantly 

below the required 80% standard and located in an unbroken survey band that extended for 

several hundred feet. Sec’y Ex. 21, Tr. 206. 

b. Notice to the Operator

MSHA had put Big Ridge on notice that greater efforts towards rock dusting were 

necessary through the Sept 26, 2012 close out meeting, advance warnings of the need to survey 

the old North area, and the issuance of 44 other 30 CFR § 75.403 violations in the previous two 

years at the Willow Lake mine. Tr. 208-09; Sec’y Ex. 21, 2. Big Ridge’s argument that 

Inspector Lampley failed to provide specific evidence of this notice is unavailing, as I found 

Lampley’s testimony regarding the early warning for the Old North rock dust survey entirely 

credible. Tr. 208-09. As Big Ridge Safety Manager Barras himself acknowledged that 

management was tired of getting rock dust failure citations, it is clear that Big Ridge was aware 

that rock dusting was considered a critical safety requirement by MSHA and that they needed to 

do a better job of rock dusting. Tr. 234. 

36 FMSHRC Page 1033
c. Prior Abatement Efforts

Big Ridge presented credible evidence that they had increased rock-dusting efforts at the 

Willow Lake Mine from 2009 to 2012. Tr. 232-33; Resp. Ex. EEE. However, they did not 

present any evidence concerning heightened efforts after the Sept 26, 3012 closeout meeting or 

claim they were applying additional rock dust at the Old North face at the time of Lampley’s 

inspection. Thus, Big Ridge did not present convincing evidence of specific prior abatement 

efforts related to the specific violative condition identified in Order No. 8445336 

d. Obviousness of the Hazard and Degree of Danger

Inspector Lampley credibly testified that near the abandoned face, the sample areas were 

dark, indicating to him that those samples would not meet the 80% incombustible requirements 

of the standard. Tr. 200. Indeed, at the farthest inby survey band, six samples were collected 

and none of those samples contained more than 65% incombustible material, with one sample 

containing only 49.5% incombustible material. Sec’y Ex. 21. As such, I find that the test results 

corroborate Lampley’s testimony that the condition was visually obvious. In an apparent attempt 

to dispute the obviousness of the violation, Safety Director Barras stated at hearing that the test 

results indicated that rock dust was present at every sample location. Tr. 238. However, after 

reviewing the test results, it is clear that the test results only report total incombustible content 

and do not detail specific amounts of applied rock dust. As the Respondent pointed out in 

regards to Order No. 8436212, not all mined material is combustible and the average baseline 

incombustible content of mined material at the Willow Lake mine is 50%. Tr. 93. Thus, noting 

Big Ridge’s earlier statement that Willow Lake material on average has a 50% incombustible 

content, I find that incombustible content results in the 50% to 65% range indicate that very little 

rock dust had been applied at that sample location. As such, the test results corroborate Mr. 

Lampley’s observations that at the farthest inby band, rock dust was very thinly applied and 

visually deficient. 

I have already held that due to halted mining activities, there was only a small probability 

of an ignition occurring at the old North area. However, if planned equipment removal activities 

were to cause an ignition, the presence of uncontrolled combustible material throughout a several 

hundred foot area could sustain a fatal coal dust explosion. As such, while the likelihood of an 

injury event occurring was low, the risk of such an ignition was not totally eliminated and the 

insufficiently rock dusted areas still presented a high degree of danger. 

e. Operator’s Knowledge of the Violation

 The Secretary has not established that Big Ridge management had actual knowledge that 

the old North area was not adequately rock dusted. However, as I have ruled above, the fact that 

the area closest to the abandoned face was dark and significantly lacking in sufficient rock dust 

indicates that Big Ridge should have identified the violation. 

As such, the Secretary has presented strong evidence for four of the unwarrantable failure 

factors while Big Ridge has only produced evidence of a general effort to improve rock dusting 

efforts without providing evidence of specific efforts at the location in question or time period 

36 FMSHRC Page 1034
immediately before the survey. Therefore, for all the reasons stated above, I find that Order No. 

8445336 was the result of Big Ridge’s unwarrantable failure to comply with a mandatory safety 

standard and uphold the Secretary’s 104(d) (2) designation. 

5. Penalty Assessment

 The Secretary has proposed a regularly assessed penalty of $7,774.00. In considering the 

six statutory penalty criteria, I find that Big Ridge violated 30 CFR § 75.403 44 times in the two 

years prior to this citation and the proposed penalty is appropriate to Big Ridge’s status as a large 

operator. I have ruled that Big Ridge was highly negligent and that the violation involved a low 

likelihood of injury yet still presented a high degree of danger. The Secretary acknowledged that 

Big Ridge did abate the condition through repeated redusting efforts. Tr. 197; Sec’y Ex. 21, 3. 

After considering all these criteria, I uphold the Secretary’s proposed penalty and assess Big 

Ridge a civil monetary penalty of $7,774.00 for Order No. 8445336. 

B. Order No. 8431905

MSHA Inspector Dean Cripps issued Order No. 8431905 on November 29, 2012 for an 

alleged violation of 30 CFR § 75.220 (a)(1), finding that Big Ridge had violated its roof control 

plan by allowing miners to operate in the “red zone”. Sec’y Ex. 34, 1. The Order alleges in part 

that: 

...Interviews were conducted with several employees as part of an

accident investigation. Several of the employees stated that they 

have recently observed continuous miner operators in the Red 

Zone while operating the machine. They have also stated they 

have recently observed operators tramming the continuous mining 

machine while standing on the cable and leaning against the 

machine.... 

Sec’y Ex. 34, 1-2. 

Cripps determined than an injury was highly likely, a resulting injury would be fatal, the 

violation was S&S, 1 person was affected, the violation was the result of Big Ridge’s high 

negligence, and constituted a 104(d) (2) unwarrantable failure to comply with a mandatory safety 

standard. Sec’y Ex. 34. The Secretary has proposed a regularly assessed penalty of $53,858.00. 

Sec’y Petition: Exhibit A. 

30 CFR § 75.220(a) (1) states: 

Each mine operator shall develop and follow a roof control plan, 

approved by the District Manager, that is suitable to the prevailing 

geological conditions, and the mining system to be used at the 

mine. Additional measures shall be taken to protect persons if 

unusual hazards are encountered. 

36 FMSHRC Page 1035
The relevant portion of Respondent’s roof control plan cited in the order states in part: 

While repositioning the continuous mining machine within the working place, all 

persons involved shall be positioned in a safe location away from any part of the 

continuous mining machine. During place changing, all persons involved with 

the move shall be positioned in a safe location away from the continuous mining 

machine while the machine is being trammed. 

Tr. 572, Sec’y Ex. 34. 

Inspector Cripps issued Order No. 8431905 while completing an EO3 hazard complaint 

investigation in response to a November 17, 2012 miner hazard complaint. The complaint 

alleged that employees at the mine were operating continuous miners in the red zone while 

standing on the power cable and leaning against the machine, an action Cripps refers to as “cable 

surfing”. Tr. 533, 546. The hazard complaint investigation occurred in conjunction with a 

separate accident investigation initiated on the same day. Tr. 537. On November 19, 2012, 

MSHA investigators Cripps and Steve Miller interviewed Willow Lake Section 1 third shift crew 

members about miner operators allegedly working in the red zone. Tr. 538. Several of the 

interviewed miners confirmed that they had observed miner operators working in the red zone 

and standing on the continuous miner power cable while tramming, leading Cripps to believe the 

alleged hazard complaint was valid. Tr. 549, 557-58. As such, Cripps issued Order No. 

8431905 based on the miners’ descriptions of violative actions separate from the events of the 

November 17 accident. Tr. 538-539. Specifically, six of the eight miners interviewed confirmed 

observing miner operators performing work in the red zone. Tr. 540, Sec’y Ex. 45. 

Inspector Cripps designated the risk of injury in the order as highly likely and fatal, 

stating that many fatalities had resulted from employees being “pinched” while operating the 

miner in the red zone. Tr. 567-568. He designated the negligence level as high and an 

unwarrantable failure because everyone he interviewed had knowledge about and had been 

trained with regard to the red zone. Tr. 568. Cripps concluded that management must have seen 

or been aware of miners working in the red zone due to the number of miners working in a 

variety of positions indicating they had witnessed red zone violations. One such miner, Josh 

McClendon indicated it was a common practice for miners to operate in the red zone and that he 

had observed this practice as recently as the last full shift he worked. Tr. 568-569. As such, 

Cripps determined that the widespread knowledge of this common practice among hourly 

employees indicated that the practice must have been extensive enough for the shift foreman and 

management to have observed the practice as well. Tr. 569. Cripps also testified that as there 

were no records of anyone being disciplined for working in the red zone despite the miners’ 

statements regarding how common red zone work was, it appeared that Big Ridge was not 

enforcing their red zone policy. Tr. 571. Cripps noted one person would be affected, the person 

who was working in the red zone. Id. 

1. Findings

 Big Ridge argues that Order No. 8431905 fails to meet the particularity requirements of 

Section 104(a), which should be incorporated into the elements of a 104(d) (2) order. Resp Br. 

111-113; Emerald Mines Co. 863 F.2d 51, 52 (D.C. Cir. 1998). Big Ridge specifically questions 

a lack of specificity regarding which miners were observed in the red zone, when the instances 

36 FMSHRC Page 1036
occurred, the circumstances surrounding the violations, and whether any managers were present 

when the alleged instances occurred. Resp. Br. 114. Accordingly, Big Ridge urges me to vacate 

the Order entirely. Resp. Br., 109. While I agree the particularity requirement in 104(a) 

generally applies to a 104(d) enforcement action, and that MSHA needed to provide more details 

to sustain the Secretary’s high negligence and unwarrantable failure designations, the Order and 

evidence gathered during the E03 investigation produced sufficiently specific facts to sustain the 

underlying violation.

 Big Ridge notes that the Commission has held that an order must allege particular facts 

so that the operator has an opportunity to both abate the violation and defend itself by 

challenging the legitimacy of the allegations. Resp. Br., 115-117; Erie Mining Co., 2 FMSHRC 

2717, 3721 (Sept. 1980)(ALJ Lasher)(vacating citation when the Order recited language of the 

standard without specifying whether cable was energized, whether tongs were used, or whether 

other protective measures were employed). In the present case, the Willow Lake mine was 

closed permanently following the November 17 accident thus, abatement efforts are not at issue 

in this matter. Resp. Br., 115 n. 96. Furthermore, in Erie Mining, the standard, 30 CFR § 55.12-

14, allowed for alternate means of compliance that were not addressed by the citation issued, 

leading the judge to conclude that the operator did not understand what it was being charged 

with. Erie Mining Co., 2 FMSHRC 2722. Indeed, the judge in Erie warned the regulation at 

issue in that case must not be confused with other regulations which are more simplistic. Id. at 

2721. I find the regulation at issue in this case, the specific red zone prohibition required by 30 

CFR § 75.220(a) (1), lacks the alternate means of compliance dilemma that was presented to the 

ALJ in Erie. In this case, the Willow Lake roof control plan clearly prohibits miners from 

operating in the red zone whenever the continuous miner is energized and not cutting coal. More 

specifically, anytime the continuous miner is “tramming”, or moving from one cut to another, 

and a miner enters the area between the miner and the rib or actually contacts the machine, that 

miner is automatically violating the red zone prohibition. Tr. 598. 

 Additionally, the Order itself specifically charges that miners were “tramming the 

continuous mining machine while standing on the cable and leaning against the machine.” Sec’y 

Ex. 34. As such, the Secretary must point to evidence that sustains this allegation and Big Ridge 

may defeat the allegation by rebutting the Secretary’s evidence that miners have recently 

“surfed” the continuous miner power cable or otherwise violated the red zone prohibition. Big 

Ridge management and their legal representative were present at the November 19, 2012 

interviews with the Willow Lake Section 1 third shift crew members and thus, were aware of 

their identities. Big Ridge had over a year before the hearing to further interview or depose those 

crew members in order to prepare a defense rebutting the miners’ statements regarding red zone 

violations. Tr. 664-65. Indeed, Big Ridge did call one of the original interviewees, Shift Leader 

Duty, to explain the exact meaning of his statements to MSHA during the hazard complaint 

investigation. Tr. 643. Thus, I find that the Order described minimally sufficiently specific 

factual allegations that allowed, and did in fact prompt, Big Ridge to prepare a defense to the 

Secretary’s allegations. 

 Alternatively, Big Ridge argues that the Secretary has failed to meet his burden of 

establishing a violation by a preponderance of evidence because the cited violation is based 

entirely on unsubstantiated hearsay interviews conducted by Cripps and Miller. Resp. Br. 117. 

Respondent correctly acknowledges that hearsay evidence is admissible in a FMSHRC hearing 

36 FMSHRC Page 1037
and cites Judge Feldman’s Metz decision for the proposition that it is most apt to be credited 

when it is corroborated. See, e.g., Metz v. Carmeuse Lime, Inc., 32 FMSHRC 1710, 1713 (Nov. 

2010), aff’d 532 Fed. Appx. 309 (3rd Cir. 2013) (unpublished). While I acknowledge this 

holding, I must note that hearsay testimony “may be treated as substantial evidence, even without 

corroboration, if, to a reasonable mind, the circumstances are such as to lend it credence.” MidContinent Resources, Inc., 6 FMSHRC 1132, 1135 (May 1984) (finding hearsay evidence is 

admissible in Commission proceedings so long as it is material and relevant)(quoting Hayes v. 

Department of the Navy, 727 F. 2d 1535, 1538 (Fed. Cir. 1984)). 

In this light, Big Ridge specifically questions whether some of the interviewed miners 

understood that when a continuous miner is cutting coal the red zone prohibition does not apply. 

Resp. Br. 118. Big Ridge bases this claim on Car Drivers Hawkin’s and Van’s statements that 

red zone violations could occur any time the continuous miner was “tramming back or any time 

it’s energized” and “any time the miner is running if it’s up against the rib or a car.” Tr. 544, 

547. Big Ridge claims that these statements may indicate that the miners believed a red zone 

violation could occur while the miner was cutting coal. Resp. Br., 118. However, I find that as 

Big Ridge had provided extensive red zone and pinch point training to the entire underground 

crew, these statements demonstrate that the miners fully understood it was not permissible to 

enter the red zone while the continuous miner was neither cutting coal or actively tramming, but 

was energized with the pumps on. Tr. 598-99, 654, 659. Additionally, Van specifically stated 

that he himself had trammed the continuous miner but had never cut coal. Sec’y Ex. 45: Van 

1:08:00- 1:09:00.4

 As such, Van obviously understood the difference between tramming and 

cutting. While I recognize some variances in the way each interviewed miner explained their 

understanding of the red zone, none of them inaccurately described a situation where they 

characterized an operator as violating the red zone regulations while the continuous miner was 

cutting coal. 

 Additionally, Roof Bolter McClendon and Car Driver Van explicitly stated they had 

observed operators standing on the power cable and leaning back against the continuous miner 

while tramming.5 Tr. 557-58, Sec’y Ex 45, Van 1:07:00-1:10:00. McClendon specifically stated 

that he had observed this type of red zone violation as recently as the last full shift he worked 

4

 The CD audiotape submitted by the Secretary does not contain an index or accurate 

time search function. I have cited to the relevant segment of the audio recording to the best of 

my ability. 

5

 A third miner, Car Driver Hall similarly confirmed he observed operators in the red 

zone leaning against or sitting on the continuous miner while moving it and with their feet on the 

cable to keep their feet and the cable from under the cats. He is not relied upon in my finding 

because he also testified somewhat inconsistently that he had not observed miners in the red zone 

while they were tramming the continuous miner from place to place. TR 552. A fourth miner, 

Shift Leader Duty corroborated the observations of the other three miners when interviewed by 

Miller and Cripps but he is not relied upon in findings regarding the underlying violation because 

it is unclear whether he understood he was being asked about his observations while working at 

the Willow Lake mine. In fact, he testified at hearing he believed he was being asked about 

whether he had ever seen this practice in his mining career, not specifically at the Willow Lake 

mine. TR 560-561, 643. 

36 FMSHRC Page 1038
and described it as a “common practice” Tr. 557-58. Van stated he had observed operators 

tramming the continuous miner while standing on the cable as recently as two weeks before the 

November 19 interview. Sec’y Ex 45, Van 1:07:00-1:10:00. These observations clearly and 

unequivocally describe recent tramming operations at the Willow Lake Portal mine while the 

continuous miner was not cutting coal, and by definition depicted violations of the red zone 

prohibition. Tr. 545-46. As such, I do not agree with Big Ridge Safety Manager Barras’ belief 

that all the interviewed miners were referring to red zone violations outside of the Willow Lake 

mine or to instances in the distant past. Tr. 664-65. 

 In addition to questioning the accuracy of the miners’ interpretation of the red zone, Big 

Ridge has argued that the miners’ out of court statements are not corroborated by independent 

evidence. Resp. Br. 117-119. I acknowledge that the Secretary has not produced physical 

evidence or first-hand testimony from an MSHA inspector that corroborate the red zone 

violations described by the interviewed miners. However, while preferable, such evidence is not 

absolutely necessary in order to prove a violation. Mid-Continent Resources, Inc., 6 FMSHRC 

1135. I would also note in fairness that Big Ridge urged me, in order No. 8444863, to rely on a 

Big Ridge Section Foreman’s hearsay testimony that a separate miner operator, who did not 

testify at hearing, had told him he checked the spray heads of a continuous miner in support of 

their argument that the order should be vacated. Resp. Br. 89; Tr. 507. Here, the Secretary 

presented audio recordings of the miners’ November 19, 2012 interview responses. Tr. 544-566. 

I find the recordings absolutely relevant and material to the question of whether there was a 

violation of Big Ridge’s roof control plan. All of the interviewed miners sounded entirely direct, 

genuine and sincere in their responses. However, even after accounting for some apparent and 

unexplained inconsistencies in some of the miner’s statements about general red zone violations 

I still find the responses by McClendon, Van and Duty, specifically related to cable surfing while 

at the Willow Lake Portal mine, consistent and compelling enough to support an affirmative 

finding for the underlying violation. This is underscored by the fact that these interviews were 

conducted in response to a hazard complaint and a fatal accident investigation, a fact each miner 

was painfully aware of and which dispels Big Ridge’s argument that somehow they thought they 

were being asked about red zone violations occurring at any time in their careers prior to 

working for Big Ridge. 

Accordingly, I find that the Secretary of Labor demonstrated by a preponderance of the 

evidence that miners at the Willow Lake Portal mine had recently entered the prohibited red zone 

area around a continuous miner while it was energized and not cutting coal. As such, I hold that 

Big Ridge violated 30 CFR § 75.220 (a)(1) and the mine’s mandatory roof control plan. 

2. Gravity

Inspector Cripps stated that operating in the red zone is an S&S violation because it is 

highly likely that a continuous miner operator would suffer severe or fatal injuries due to the risk 

of being pinned between the machinery and a coal rib. Tr. 567-568. Applying the four Mathies 

S & S criteria, I have already found a violation of 30 CFR §75.220(a) (1). Additionally, 

operating the continuous miner while in the red zone creates a discrete safety hazard by 

increasing the likelihood of caught-between, struck by, and pinch injuries. In this situation, the 

Secretary presented credible statements of Big Ridge miners describing operators standing on the 

continuous miner power cable and leaning back against the machine while the machine was 

tramming at the Willow Lake Portal mine during recent shift work. Tr. 558. As such, the 

36 FMSHRC Page 1039
preponderance of evidence indicates that there was a high likelihood that the hazard would result 

in a serious injury, as operators who surfed the cable could be caught underneath the tracks of the 

continuous miner, or pinched between moving machine parts and the coal rib. Big Ridge has 

previously emphasized that the 20 ton continuous mining machines at the Willow Lake Portal 

mine can crush and shatter rock and coal formations through their weight alone. Tr. 332. As 

such, I agree with Inspector Cripps that a miner caught underneath the miner or between the 

miner and the rib would most likely suffer severe or fatal injuries in the event of an accident. Tr. 

567. Therefore, I find that the Secretary has produced satisfactory evidence to meet all 4 

Mathies elements necessary to establish that the violation at issue is S & S. Mathies Coal Co., 6 

FMSHRC 1, 3-4 (Jan. 1984). 

 I note that Big Ridge has challenged the S & S and highly likely chance of injury 

designations of Order No. 8431905 due to a lack of specificity cited in the order. Resp. Br. 119-

120. However, as I held above, the Secretary has credibly established through the statements of 

Willow Lake employees that operators at the Willow Lake Portal mine stood on the continuous 

miner power cable and leaned back against the machine while tramming the machine backwards 

in the shifts prior to November 17, 2012. Due to the weight of the machine, the close confines of 

the mine entryways, and the multiple trip/pinch point hazards presented by the power cable and 

articulated joints of the continuous miner, I cannot conceive of a situation in which these actions 

would not be highly likely to lead to a serious injury or death. As such, I uphold Order No. 

8431905 as S&S and highly likely to result in an injury. 

3. Negligence

Inspector Cripps determined that Order No. 8431905 was the result of Big Ridge’s high 

negligence. Sec’y Ex. 34, 1. He made this determination based upon the number of miners in 

different positions that observed miners operating in the red zone and McClendon’s statement 

that surfing the cable was a “common practice” at the Willow Lake mine. Tr. 558. Cripps 

surmised that if numerous hourly employees had observed red zone violations, management 

officials must have been aware of these actions as well. Tr. 569. Furthermore, the fact that Big 

Ridge had not previously disciplined or terminated any miner for working in the red zone led 

him to believe Big Ridge was not enforcing its red zone policy. Tr. 570-71. 

Big Ridge disputes these inferences and denies any knowledge of red zone violations. 

Resp. Br., 121. Of the eight miners interviewed, one would clearly be considered management, 

Section Foreman Benjie Reeves. Reeves stated he has never observed or caught any miners at 

Willow Lake operating in the red zone or “cable surfing”. Tr. 562. Although not relied upon as 

a management employee by MSHA for negligence designations, Shift Leader Duty’s interview 

with Miller and Cripps is more difficult to assess. 

Rank and file hourly employees are considered agents when they perform inspections, 

“that one might expect an employer more normally to delegate to management personnel,” 

Pocahontas Fuel Co., 8 IBMA 136, 48 (1977). As such, I find that Duty was a member of 

management for the two years he was a shift leader as his duties included directing production on 

one side of a split air unit and examining pre-shift inspection records. Sec’y Ex. 45: Duty 

3:35:00-3:39:00. During the November 19 interview, Duty stated he had both observed people 

operating the continuous miner in the red zone and leaning against the machine with their feet 

out and pushing the cable away as they trammed the machine. Tr. 560-561. At hearing 

36 FMSHRC Page 1040
however, Duty denied ever seeing these practices while working either as a shift leader or 

previously as a mechanic at the Willow Lake mine, but testified that he had seen it in his 

previous mining experience at other mines. Tr. 639-640. Big Ridge argues that Duty was in a 

bad emotional state during the November 19 interview because he had just lost a friend, coworker Chad Meyers, who was the subject of the concurrent MSHA accident investigation. Big 

Ridge reiterated Duty’s claim that he interpreted the interview questions about observing work in 

the red zone to mean whether he had ever observed these practices at any time during his 

seventeen year mining career. Resp. Br., 123, Tr. 643. 

Close examination of the questions asked of Duty during the interview lends partial 

support to Big Ridge’s argument. Duty was asked “Have you ever observed anybody else 

operating the continuous miner while in the red zone?” And “Have you ever noticed anyone 

moving a continuous miner - - I used to call it the old way - - with kind of leaning against the 

machine with their feet out and pushing the cable away as he trammed the machine around it? 

Have you ever seen that happen? Tr. 561. (Emphasis added). He answered affirmatively to 

both questions. However, his response to a follow-up question – “How recently have you seen 

that happen?” adds confusion –“It’s been probably a pretty good while because I’ve been on the 

idle crew mostly here lately.” Tr. 560-561. 

I find Duty’s reference to his current assignment on the idle crew indicates that his 

answer described actions he had observed at some point during his work experience at the 

Willow Lake mine contrary to his testimony at trial. However, as stated by Duty himself during 

the interview, it had “been a good while” since he had observed red zone violations. As such, it 

appears doubtful that Duty was aware of the violations Roof Bolter McClendon referred to as a 

“common practice” that McClendon had observed as recently as the last full shift. Tr. 558. 

The preponderance of the evidence compels me to hold that “surfing the cable” was a 

common enough occurrence that Big Ridge management should have been able to identify 

violations of the red zone and initiated disciplinary action. However, as Big Ridge had instituted 

a zero tolerance policy regarding red zone violations, it is entirely plausible that operators would 

only engage in the “cable surfing” practice when they knew management was not present or in a 

position to see them. When Inspector Miller asked Roof Bolter McClendon if he believed 

operators were violating the red zone due to a lack of safety training or the operator’s desire to 

take a short cut, McClendon answered “I believe the operator think it’s easier for them; they 

have more control of the cable.” Tr. 559. McClendon went on to state that he had participated in 

plenty of safety talks regarding the prohibition of red zone work. Tr. 559. When Inspector 

Miller asked Duty a similar question regarding what might cause operators to enter the red zone, 

Duty replied, “I think they need to move their cable, and that’s the only reason I can think of.” 

Tr. 561. Section Foreman Reeves stated he’d received red zone training in annual refresher 

trainings and that he’d never caught anybody operating in the red zone. Tr. 562-63. These 

responses indicate that the practice of surfing the cable appeared to be initiated by individual 

operators in direct contradiction of Big Ridge’s safety policy when management personnel were 

not present or in a position to readily observe them. 

While Inspector Cripps and Miller did ask questions about safety training, the interview 

excerpts presented by the Secretary do not indicate that they asked any hourly miners if 

management was aware of red zone violations, if management was present during any of the 

violations observed by hourly miners or if they reported their observations to management. 

36 FMSHRC Page 1041
Section Foreman Reeves indicated he had never operated or observed anyone else operate in the 

red zone. Tr. 562-63. Even discounting Duty’s claim at hearing that he only observed red zone 

violations at other mines, Duty stated at the November 19 interview that he had been on a 

different work assignment and it had been a “good while” since he had observed anyone operate 

in the red zone. Tr. 561, 640. I find the Secretary has not demonstrated by a preponderance of 

evidence that management was aware of the recent red zone violations upon which the 

underlying violation is based. 

Big Ridge Operations Superintendent Haantz, Mine Manager Genisio and Regional 

Safety Manager Barras testified regarding Big Ridge’s zero-tolerance red zone policy. Haantz, 

Genisio and Barras described Big Ridge’s daily safety meetings, annual safety refresher training, 

an off-site “Safety, A Way of Life, Days” training, and posters warning against work in the red 

zone placed on bulletin boards and in the facility restrooms. Tr. 614-15, 631-32, 562, 653-60, 

Resp. Ex. PPP; RRR (1), (3); QQQ (1); OOO; MMM; NNN. Big Ridge also maintains a 1-800 

“Tell Peabody” anonymous hotline whereby employees can call into the company’s legal group 

for any issue they have. Tr. 650. These witnesses also confirmed that Big Ridge instructs all 

employees if they are caught working in the red zone, they will be subject to immediate 

termination with no progressive discipline. Tr. 619, 630, 649-650. Both Haantz and Barras 

confirmed that miners had been fired from other Peabody mines in the region for violating the 

red zone policy as well as other life-saving rules. Tr. 618-619, 650. Finally, Big Ridge 

management personnel Haantz, Barras, Genisio, and Reeves all deny having any prior 

knowledge of any allegations of miners working in the red zone at the Willow Lake mine. Tr. 

616, 632, 660, 562-63. 

Big Ridge had instituted a comprehensive safety plan prohibiting red zone work and 

encouraging anonymous safety complaints to be filed by Peabody employees. Therefore, 

although it appears that red zone violations occurred often enough that management should have 

been aware of the issue; the hourly operators who violated the red zone did so on their own 

accord in direct violation of the company’s safety policy without the actual knowledge of 

management. Thus, I hold that the company’s efforts to prohibit, identify, and discipline red 

zone violations are legitimate mitigating circumstances. As such, I hold that the negligence 

designation for Order No. 8431905 shall be MODIFIED from high to moderate. 

4. Unwarrantable Failure

For Order No. 8431905, I find that the Secretary has not produced sufficient evidence to 

satisfy the five factor test considered by the Commission in evaluating unwarrantable failure 

designations. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). 

a. Extent and Duration of the Violation

After reviewing the transcript and the submitted compact disk recording of the eight 

interviewed miners, it is clear that some continuous miner operators at the Willow Lake Portal 

mine violated the red zone on an intermittent basis, “when they felt like they needed to be there.” 

Tr. 549. However, it also appears some operators followed the mine’s safety rules and 

consistently stayed out of the red zone. Sec’y Ex. 45: Van 1:07:00- 1:10:00. Unfortunately, the 

length of time the violation existed cannot be determined because as Big Ridge argues there is 

36 FMSHRC Page 1042
very little evidence provided regarding the details of observed red zone violations. All we really 

know is that several miners answered affirmatively when asked if they had ever observed miner 

operators either working in the red zone or using their feet while tramming to push the power 

cable out of the way of the miner cats, a term Cripps refers to as “cable surfing.” This evidence 

is woefully inadequate to meet the burden of demonstrating duration. Likewise the extent of the 

violation is difficult to assess. Out of all the miners interviewed only one, Roof Bolter 

McClendon opined that it was common practice to see a miner operator using their feet while 

tramming to push the cable out of the way of the miner cats. This is minimally sufficient to at 

least suggest that the violation was relatively extensive. 

b. Notice to the Operator

The Secretary did not produce any evidence suggesting that MSHA had previously cited 

or warned Big Ridge about red zone violations at the Willow Lake Portal mine. Big Ridge 

Safety Manager Barras credibly testified that he had never been informed of any red zone 

violations at the Willow Lake Mine during ten years as a safety officer. Tr. 660-61. Section 

Foreman Reeves stated during the Nov 19 interview he had never observed anyone working in 

the red zone. Tr. 562-63. I find on balance, Shift Leader Duty’s statements indicate that while 

he had previously observed red zone violations most likely at the Willow Lake mine there is no 

indicia of specifically when he made such observations, who was involved, the circumstances he 

observed and most importantly his reaction to what he observed. As such, the Secretary has not 

produced any evidence to demonstrate that MSHA had notified Big Ridge of a need to increase 

red zone enforcement/monitoring, and woefully insufficient evidence that Big Ridge 

management was aware of ongoing red zone violations in the weeks and months prior to the 

November 17 hazard complaint. 

c. Prior Abatement Efforts

Big Ridge incorporated red zone violations into a group of Life Safety Rules that were 

posted throughout mine facilities. Big Ridge conducted numerous pre-shift safety talks on red 

zones and hosted a full day refresher course that emphasized the hazards of working in red zone 

and pinch point areas. Tr. 559; 651-52. Big Ridge created an anonymous safety complaint 

hotline to encourage miners to report safety hazards. Tr. 650. Big Ridge also appears to have 

consistently and promptly terminated any employee observed by management working in the red 

zone at other nearby Peabody mines whenever a complaint was filed. Tr. 618-19. However, 

Barras stated management had not observed or received any reports regarding red zone 

violations at the Willow Lake mine. Tr. 660-61. Therefore, I find that Big Ridge instituted a 

substantial preventative safety program designed to prevent red zone violations from occurring. 

d. Obviousness of the Hazard and Degree of Danger

As red zone violations involved the minute to minute work movements of miner 

operators, red zone violations could only be identified by closely monitoring the operation of the 

continuous miner operator or unfortunately, if an accident occurred. Although hourly employees 

described seeing red zone violations, no evidence was proffered to show that the hourly 

employees ever reported them to management. Tr. 660-61. As such, while the hazard of a red 

36 FMSHRC Page 1043
zone violation was obvious at the times it actually occurred, such a violation appears to have 

lasted for a brief period of time and was not detectable as soon as the operator removed himself 

from the danger zone. Additionally, the Secretary has not specifically contended that Big Ridge 

management failed to adequately supervise continuous miner operations in their work. In fact 

both Shift Leader Duty and Reeves informed MSHA inspectors that they watched continuous 

miner operators make cuts as part of their regular supervisory duties. Sec’y Ex. 45: Duty 

3:44:00-3:46:00, Reeves 4:03:00-4:05:00. 

As I have held above, red zone violations posed a high degree of danger to continuous 

miner operators, as the operator could become entrapped or crushed by the continuous miner. 

e. Operator’s Knowledge of the Violation

The Secretary has presented no evidence of management’s knowledge of red zone 

violations in the months leading up to the November 17 hazard complaint. The Secretary merely 

relies on an inference made by Inspector Cripps that given the observations of the interviewed 

miners management must have been aware of red zone violations at Willow Lake. Said 

inference is countered by the credible straightforward testimony, on this point, by Big Ridge 

management officials. Safety Manager Barras stated that while he had received reports of other 

life safety violations at Willow Lake, he had never been informed of a red zone violation at 

Willow Lake in his ten years as a safety officer. Tr. 660-61. Mine Manager Genisio testified 

that he had never observed or received a report of a red zone violation during two years as the 

third shift mine manager at Willow Lake leading up to November 2012. Tr. 632-33. Section 

Foreman Reeves stated during the November 19 interview that he had never operated or 

observed anyone else in the red zone of a continuous miner. Tr. 562-63. Shift Leader Duty did 

state in the November 19 interview that he had observed red zone violations but that he had not 

seen any for a “pretty good while” since he had been assigned to an idle shift. Tr. 561. As such, 

I cannot conclude, with so little information about Duty’s prior observations, that he was aware 

of the recent red zone violations observed by McClendon and Van referenced in the order at 

issue. 

The Secretary has argued that since McClendon described red zone violations as a 

“common practice”, it is simply not credible that Big Ridge management was not aware of 

ongoing red zone violations. However, when reviewing the statements made by the miners 

during the November 19 interview, it appears that the miners’ exposure to red zone violations 

varied greatly as some workers had seen red zone violations as recently as the “last full shift” 

while some had not seen any violations for “months” or a “long while” Tr. 558, 553, 566. As 

the third shift ran two separate continuous mining operations and different continuous miner 

operators ran the miners from shift to shift, it appears that this variance may be attributed to the 

tendencies of individual continuous miner operators. Sec’y Ex. 45: Hawkins 23:00-25:00; Sec’y 

Ex. 45: Van 1:07:00- 1:10:00. As noted in the discussion regarding prior abatement efforts, Big 

Ridge management testified without dispute that it had terminated employees for violating its red 

zone violations at other mines in the region. Tr. 618-19. Thus, I find it reasonable to believe that 

a few continuous miner operators at the Willow Lake mine simply, and regrettably, disobeyed 

company policy when they knew management was not present and that no one reported such 

violations to anyone in management. Tr. 618-19. 

36 FMSHRC Page 1044
 After reviewing all five unwarrantable failure factors, I have determined that the 

Secretary has not presented sufficient evidence to demonstrate Big Ridge was aware of ongoing 

red zone violations, and that Big Ridge credibly demonstrated it had instituted comprehensive 

life-safety training and policies designed to prevent such violations. Although the Secretary does 

not necessarily have to prevail on all unwarrantable failure factors, I find that when the factors 

are considered as a whole, the Secretary has not demonstrated that Big Ridge acted with a 

serious lack of reasonable care, intentional misconduct or reckless disregard of the standard. 

Emery Mining Corp., 9 FMSHRC 1997, 2004. As such, Order No. 8431905 shall be 

MODIFIED from a 104(d) (2) Order to a 104(a) Citation. 

5. Penalty Assessment

The Secretary has proposed a regularly assessed penalty of $53,858.00 for Order No. 

8431905. Resp. Br., 127. I have already held the negligence level shall be modified from high 

to moderate and that the 104(d)(2) unwarrantable failure designation shall be modified to a 

104(a) citation 

Order No. 8431905 indicates that standard 75.220(a) (1) was cited 46 times in two years 

at the mine. Sec’y Ex. 34. However, the Secretary did not present any evidence showing 

whether any of these citations were for red zone violations. The parties have stipulated that Big 

Ridge, Inc. is a large operator. Tr. 10. I have found Big Ridge to be moderately negligent. 

There is no indication that the assessed penalty would have any impact on Big Ridge’s ability to 

continue in business. I have determined that the gravity of the violation is properly assessed as 

highly likely and S &S. Finally, Big Ridge acted in good faith to achieve rapid compliance after 

being notified of the violation when it closed the mine. Tr. 572. After considering all of the 

above factors, the 30 CFR § 100 penalty tables, and noting the extraordinary danger involved in 

red zone violations, I find it appropriate to assess a penalty of $35,000 for Citation No. 8431905. 

36 FMSHRC Page 1045
VIII. JUDGMENT SUMMARY

 For the eight citations and orders contested at hearing, I hereby ORDER that the 

following penalty modifications and monetary penalty adjustments shall be made:

Citation 

No. 

Originally 

Proposed 

Assessment 

Judgment 

Amount Modification 

LAKE 2012-506 (Judgment Only) 

8436212 $66,100.00 $30,000.00 Reduce Number of Miners Affected from “4” to “2” 

8436107 $14,700.00 $1,500.00 Modify 104 (d)(2) Order to 104(a) Citation6

LAKE 2012-66 (Judgment Only) 

8444809 $47,700.00 $3,000.00 Reduce Likelihood of Injury from 

“Reasonably Likely” to “Unlikely” 

Remove Significant and Substantial Designation 

Reduce Negligence from “High” to “Moderate” 

8445037 $47,700.00 $2,000.00 Reduce Likelihood of Injury from 

“Reasonably Likely” to “Unlikely” 

Remove Significant and Substantial Designation 

Reduce Severity of Injury from 

“Fatal” to Permanently Disabling 

8445268 $25,810.00 $15,000.00 Modify 104(d)(1) Order to a 104(a) Citation 

Reduce Negligence from “High” to “Moderate” 

LAKE 2012-251 (Judgment Only) 

8444863 $52,500.00 $0.00 Vacate 

LAKE 2013-307 (Judgment Only) 

8445336 $7,774.00 $7,774.00 Upheld as Written and Assessed 

8431905 $53,858.00 $35,000.00 Modify 104(d)(2) Order to 104(a) Citation 

Reduce Negligence from “High” to “Moderate” 

Judgment 

Total

$316,142.00 $94,274.00 

IX. SETTLEMENT

 The Secretary has filed a motion to approve settlement of 25 of the violations involved in 

this matter. I acknowledge and accept the explanation for the agreed upon settlement contained 

in the parties’ settlement motion and amendments. The originally assessed amount for these 25 

6

 Modification reflects reduction from “Special Assessment Narrative Form Chart; Resp. 

Ex. B” 

36 FMSHRC Page 1046
citations was $484,876.00 and the proposed partial docket settlement is for $296,571.00. The 

parties have moved to approve the proposed settlement as follows. 

Citation 

No. 

Originally 

Proposed 

Assessment 

Settlement 

Amount Modification 

LAKE 2013-251 (Settlement Only) 

8445322 $32,800.00 $32,800.00 

8407445 $70,000.00 $35,000.00 Modify Number of Persons Affected from 

 “9” Persons to “4” Persons 

8407466 $70,000.00 $35,000.00 Modify Number of Persons Affected from 

“9” Persons to “4” Persons 

LAKE 2013-252 

8407448 $2,901.00 $2,000.00 Reduce Monetary Penalty 

8407451 $2,678.00 $2,678.00 Reduce Monetary Penalty 

8407464 $3,405.00 $3,405.00 

8407902 $3,689.00 $3,689.00 

8444868 $19,793.00 $15,000.00 Reduce Monetary Penalty 

8445325 $3,996.00 $3,200.00 Reduce Monetary Penalty 

8445328 $2,473.00 $2,200.00 

8445332 $1,795.00 $1,795.00 

8445339 

$11,306.00 

$8,500.00 Modify Severity of Likely Injury from 

“Fatal” to “Permanently Disabling” 

LAKE 2012-506 (Settlement Only) 

8428748 $27,900.00 $20,000.00 Modify Likelihood of Injury from 

“Reasonably Likely” to “Unlikely” 

Remove “Significant and Substantial” Designation 

8434918 $21,900.00 $14,000.00 Modify “104(d)(2) Order” to “104(a) Citation” 

8435824 $14,700.00 $10,000.00 Modify Likelihood of Injury from 

“Reasonably Likely” to “Unlikely” 

 

Remove “Significant and Substantial” Designation 

8435826 $35,500.00 $20,000.00 Reduce Monetary Penalty 

8428781 $13,600.00 $8,899.00 Modify “104(d)(2) Order” to “104(a) Citation” 

8435650 

$6,600.00 $5,000.00 

Modify Likelihood of Injury from 

“Reasonably Likely” to “Unlikely” 

 Remove “Significant and Substantial” Designation 

LAKE 2013-307 (Settlement Only) 

8445327 $14,700.00 $14,700.00 

36 FMSHRC Page 1047
8445331 $70,000.00 $35,000.00 Reduce Monetary Penalty 

LAKE 2012-896 

8445020 $13,600.00 $8,000.00 Reduce Monetary Penalty 

8424296 $9,882.00 $2,000.00 Modify “104(d)(2) Order” to “104(a) Citation” 

8424297 $4,440.00 $1,000.00 Modify “104(d)(2) Order” to “104(a) Citation” 

8428355 $13,609.00 $6,396.00 Reduce Monetary Penalty 

8428356 $13,609.00 $6,309.00 Reduce Monetary Penalty 

Total $484,876.00 $296,571.00 

X. ORDER 

I have considered the submitted settlement documents and I conclude that the proposed 

settlement is appropriate under the criteria set forth in section 110 (i) of the Act. The motion to 

approve settlement is GRANTED and the citations contained in this agreement are 

MODIFIED as set forth above for a partial settlement total of $296,571.00. 

Based on the criteria in section 110(I) of the Mine Act, 30 U.S.C. § 820(I), I 

assess the eight penalties contested at hearing above for a total judgment penalty of 

$94,274.00. Big Ridge, Inc. is hereby ORDERED to pay the Secretary of Labor the total 

sum of $390,845.00 within 30 days of this order.7 

/s/ David P. Simonton

David P. Simonton 

Administrative Law Judge 

7

 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 

63179-0390 

36 FMSHRC Page 1048
Distribution: (First Class U.S. Mail) 

Ryan Pardue, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, 

Denver, CO 80202 for Petitioner 

Lauren Polk, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, 

Denver, CO 80202 for Petitioner 

Arthur Wolfson, Jackson Kelly, 3 Gateway Center, Suite 1500, 401 Liberty Ave., Pittsburgh, PA 

15222 for Respondent 

36 FMSHRC Page 1049
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 

 April 28, 2014 

 

ORDER DENYING MOTION FOR APPROVAL OF ECONOMIC REINSTATEMENT

Before: Judge Moran 

 Before the Court is Respondent’s Motion for Approval of Economic Reinstatement. 

On April 7, 2014,1 the Court issued a decision in which it ordered the temporary reinstatement of 

Complainant Charles Riordan, on whose behalf this proceeding was brought by the Secretary of 

Labor2 pursuant to Section 105(c) of the Mine Safety and Health Act of 1977. Thereafter, Knox 

Creek Coal sought to have Mr. Riordan economically reinstated, but the parties reached an 

impasse on the issue of whether Knox Creek may offset the earned income the Complainant may 

receive from outside employment against the payment it owes the Complainant during this 

period of temporary reinstatement. Knox Creek now seeks an order for economic reinstatement 

in which the Court would impose a provision that would allow for this offset of income. Per the 

Commission’s clear ruling in MSHA v. North Fork Coal Corp., 33 FMSHRC 589 (Mar. 2011), 

Commission judges, absent rare and unusual circumstances, leave the terms of such potential 

agreements to the parties and do not become involved in the particulars of economic 

reinstatement agreements. Accordingly, as explained more fully below, Respondent’s Motion is 

DENIED. 

Respondent has moved for the Court to enter an order that would impose economic 

terms upon the Complainant’s temporary reinstatement that are opposed by the Complainant. 

Both the Secretary and private counsel for the Complainant object to the provision in Knox 

 1 The Court entered an Amended Decision and a Second Amended Decision on April 8 and 10, 

2014, respectively, but neither made a substantive change to the original Decision. 

2

 Separate from the Secretary’s representation, Attorneys Tony Oppegard and Wes Addington 

also represent Mr. Riordan in this proceeding. 

 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of CHARLES RIORDAN, 

 Complainant, 

 v. 

KNOX CREEK COAL CORP., 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. VA 2014-199-D 

NORT-CD 2014-03 

Mine: Tiller No. 1 

Mine ID: 44-06804 

36 FMSHRC Page 1050
Creek’s proposed order that would enable the mine to deduct any income that the Complainant 

may earn from outside employment from the amount it owes the Complainant during this period 

of temporary reinstatement. Given this disagreement between the parties, the Respondent 

argues that an ALJ is empowered to order economic reinstatement as a part of the Act’s broad 

authority in discrimination proceedings. Reply at 4 (quoting MSHA o/b/o Dunmire v. Northern 

Coal Co., 4 FMSHRC 126, 142 (Feb. 1982)).3 Both the Secretary and Complainant’s counsel 

object to the Court’s involvement in this matter, and they cite to MSHA v. North Fork Coal 

Corp., 33 FMSHRC 589 (Mar. 2011) as guidance for the limits placed upon Commission judges 

in the temporary reinstatement phase of discrimination proceedings. 

The Court finds the Commission’s decision in North Fork Coal to control in this matter. 

Similar to Knox Creek, the North Fork Respondent sought to have Complainant’s earnings, 

while employed elsewhere during his economic reinstatement, to offset the amounts he was 

owed by Respondent. In rejecting the Respondent’s position, the Commission differentiated 

between the legal principles that apply to monetary awards when a miner prevails in a 

discrimination proceeding on the merits versus those that govern in the temporary reinstatement 

context: 

With regard to the former, the Commission has noted that the provision for back pay and 

other remedies in section 105(c) awarded once it has been established that a miner was 

discriminated against, is modeled after the remedial provisions of the National Labor 

Relations Act (“NLRA”), 29 U.S.C. § 160(c). Sec'y on behalf of Gooslin v. Kentucky 

Carbon Corp., 4 FMSHRC 1, 2 n.4 (Jan. 1982). Under that statute, concepts of offset 

and the duty to mitigate damages are routinely applied to back pay awards, and the 

Commission has incorporated those concepts in computing back pay awards under 

section 105(c). See, e.g., Sec'y on behalf of Dunmire v. Northern Coal Co., 4 FMSHRC 

126, 142-44 (Feb. 1982). We have recognized that back pay is designed to make the 

miner as nearly whole as possible for the losses he or she has suffered between the time 

the miner was discriminated against and the time his or her claim of discrimination was 

upheld. Id. at 143. If the miner does not prevail, the miner is due no award. 

 

In contrast... the purpose of temporary reinstatement is to put the miner back to work as 

soon as possible so that he or she can resume earning a living while the discrimination 

case is heard. The temporary reinstatement provisions contemplate that the miner will 

provide the operator labor in return for wages and benefits. The issue of back pay usually 

does not arise since the miner is not compensated for the earlier period of time between 

termination and the judge's order temporarily reinstating him or her. Conversely, if the 

operator chooses to pay the miner while foregoing the miner's labor, there is no right for 

the operator to seek reimbursement from the miner should the miner not eventually 

prevail on his or her discrimination claim. 33 FMSHRC at 592-93 (emphasis added). 

 3

 In its Motion, Respondent cites to Secretary o/b/o Thurman Wayne Pruitt v. Grand Eagle 

Mining, 33 FMSHRC 1638 (July 2011) (ALJ Melick) to illustrate this principle. This case, however, 

provides no such holding, as the ALJ granted the Secretary’s application for temporary reinstatement, but 

did not speak to the issue of economic reinstatement or to the Commission’s broad authority in 

discrimination proceedings under the Mine Act. 

36 FMSHRC Page 1051
In light of this distinction, the Commission rejected the notion that the considerations which 

shape back pay award amounts, also apply, as a matter of law, to the economic reinstatement 

order before it. Id. at 593. The Commission elaborated that “[u]nlike back pay awards, 

Commission judges do not decide the terms of economic reinstatement agreements.” Id. 

The North Fork decision applied these legal principles as it examined three separate 

periods of time that transpired over the course of the discrimination proceeding. The first 

involved the period from when the ALJ entered the order of economic reinstatement, which was 

the product of a negotiated agreement between the parties, to when the ALJ dissolved the TR 

order. For this time frame, the Commission ordered that the Respondent pay the miner 

according to the terms of the economic reinstatement agreement. Id. at 595. The second time 

period does not apply here.4

 For the third time period, addressing the date the Commission 

reversed the judge’s decision and forward, it held that “the judge’s earlier supplemental order 

incorporating the parties’ agreement should be applied, with no offset.” Id. Compliance with the 

terms of the original order, with no offset, would continue until the parties negotiated a new 

agreement that the judge would then enter as either a superseding new order or as a modification 

to the original order. Id. at 596. 

Knox Creek’s Reply brief attempts to apply the Commission’s ruling during this second, 

“interim” period, when no economic reinstatement order was in effect, and then during the third 

period, when the ALJ could enter a modified order, to justify its position that an ALJ has broad 

discretion to modify the terms of an economic reinstatement agreement or offset amounts paid by 

other employers despite a miner’s opposition. Reply at 4-5. Only during this interim (second) 

period when the economic reinstatement order was temporarily dissolved did the Commission 

order the Complainant to offset his payments from Respondent against his earnings from outside 

employment. This offset, however, was unique to the circumstances in North Fork, where no 

order existed for a brief period following the dissolution of a previously entered order, and is not 

applicable here, where the parties have yet to reach an agreement at all. Furthermore, in the third 

time period, the Commission ordered that the original economic reinstatement agreement from 

the first period controlled until the parties negotiated a new agreement, which the Court could 

then enter as either a modified order or a new order. The ALJ was therefore not free to modify 

the order at the behest of one party; rather, the parties would need to arrive at a new agreement 

before the Court could take any subsequent action. Contrary to Knox Creek’s arguments, the 

scenario before the Court here is most closely akin to the first time period in North Fork, where 

an economic reinstatement order had been entered that incorporated the terms of the parties’ 

negotiated economic reinstatement agreement. As noted above, during this first period the 

Commission declined to intervene in making any monetary modifications and asserted that the 

parties’ agreed-upon order controlled. 

Respondent’s assertion regarding the Court’s broad discretion to enter or modify an order 

of economic reinstatement presupposes the existence of an underlying agreement between the 

 4

 That time period involved the “interim period” between when ALJ ordered the dissolution of the 

TR order and when the Commission reversed the judge’s order dissolving temporary reinstatement. For 

that limited period of time, in applying principles of fairness, the Commission declined to impose the 

terms of the economic reinstatement upon the Respondent, and ordered that the Complainant offset his 

pay from Respondent with his outside earnings. 33 FMSHRC at 595.

36 FMSHRC Page 1052
parties, which here is not the case. The Commission’s rulings for the second and third time 

periods in North Fork were premised upon the existence of a negotiated agreement that was 

entered in the first time period. The parties here have not yet reached even this preliminary level 

of agreement. The Commission has spoken plainly that Commission judges do not decide the 

terms of economic reinstatement agreements. The lack of an agreement does not trigger this 

Court’s intervention. Until the parties reach an agreement on the terms of any economic 

reinstatement, the Court’s involvement is foreclosed. 

 The Court would also echo the Commission’s observation in North Fork, where it noted 

that “we are cognizant of the fact that it was North Fork's decision to offer economic 

reinstatement in lieu of actual reinstatement that gave rise to the retroactive pay relief that North 

Fork now seeks to challenge.” Id. at 593. Here the Court would note that Knox Creek does 

retain the option to actually reinstate Mr. Riordan at the mine. After all, it is Knox Creek that 

seeks to forego Mr. Riordan’s labor, a fact that undercuts its objection to Riordan working 

elsewhere during this interval. This offer to pay could coincide with his working at the mine, 

which would alleviate concerns that Mr. Riordan is receiving an income from an outside 

employer. 

 In sum, the Court’s broad discretion in discrimination proceedings does not encompass 

the authority to enter an order of temporary economic reinstatement for Mr. Riordan absent an 

agreement between the parties as to its terms. The make-whole principles that govern in 

discrimination merits rulings do not also apply in the context of temporary reinstatement, for the 

purpose of temporary reinstatement is to put a miner back to work. Accordingly, Respondent’s 

Motion is therefore DENIED. 

 SO ORDERED. 

 

 /s/ William B. Moran 

 William B. Moran 

Administrative Law Judge 

Distribution: 

Karen M. Barefield, Office of the Associate Regional Solicitor, U.S. Department of Labor, 1100 

Wilson Blvd., 22nd Floor West, Arlington, VA 22209 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY 

41858 

Steve Hodges, Esq., Penn, Stuart & Eskridge, 208 E. Main Street, Abingdon, VA 24210 

36 FMSHRC Page 1053
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 

April 29, 2014 

DECISION

Appearances: Matt S. Shepherd, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, on behalf of the Petitioner; 

 Jeffrey K. Phillips, Esq., Steptoe & Johnson PLLC, Lexington, Kentucky, 

on behalf of the Respondent. 

Before: Judge Feldman 

 These consolidated contest and civil penalty proceedings are before me based upon 

petitions for assessment of civil penalty filed by the Secretary of Labor (“the Secretary”) under 

section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d), against 

The Respondent, Martin County Coal Corporation (“MCC”). These matters concern the nature 

MARTIN COUNTY COAL 

 CORPORATION, 

 Contestant 

 v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

MARTIN COUNTY COAL 

 CORPORATION, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CONTEST PROCEEDINGS 

Docket No. KENT 2012-615-R 

Citation No. 8265796; 02/01/2012 

Docket No. KENT 2012-616-R 

Order No. 8265798; 02/01/2012 

Docket No. KENT 2012-617-R 

Order No. 8265804; 02/01/2012 

Docket No. KENT 2012-618-R 

Order No. 8265805; 02/01/2012 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 2012-1321 

A.C. No. 15-19193-292715 

Docket No. KENT 2012-1403 

A.C. No. 15-19193-294671 

Mine: Voyager No. 7 

36 FMSHRC Page 1054
and extent of cited violative roof and rib conditions observed by the issuing inspectors on 

February 1, 2012, which the record reflects had not materially changed during the weeks

preceding the inspection. A hearing was held on October 30 and October 31, 2013, in 

Prestonburg, Kentucky. The parties’ briefs have been considered in the disposition of these 

matters. 

 Specifically, these proceedings concern four contested citations and orders (“citations”) 

issued on February 1, 2012, alleging violations of mandatory safety standards contained in 

Part 75 of the Secretary’s regulations governing underground coal mines. 30 C.F.R. §§ 75 et seq. 

The Secretary alleges the subject violations are attributable to unwarrantable failures.1 Docket 

No. KENT 2012-1321 includes 104(d)(1) Citation No. 8265796, for which the Secretary 

proposes a civil penalty of $14,000.00, and 104(d)(1) Order Nos. 8265798 and 8265804, for 

which the Secretary proposes civil penalties of $16,400.00 each. These citations allege adverse 

roof and rib conditions in Voyager No. 7 Mine’s No. 4 Entry along the No. 1, 2 and 3 belt lines, 

respectively, in violation of section 75.202(a). Section 75.202(a) provides: 

The roof, face and ribs of areas where persons work or travel shall 

be supported or otherwise controlled to protect persons from 

hazards related to falls of the roof, face or ribs and coal or rock 

bursts. 

30 C.F.R. § 75.202(a). 

104(d)(1) Order No. 8265805 in Docket No. KENT 2012-1403 alleges that, by failing 

to record and correct the cited adverse roof and rib conditions, the Respondent failed to conduct 

adequate on-shift examinations in violation of section 75.362(b). The Secretary proposes a civil 

penalty of $3,224.00 for Order No. 8265805. Section 75.362(b) provides, in pertinent part: 

During each shift that coal is produced, a certified person shall 

examine for hazardous conditions and violations of the mandatory 

health or safety standards referenced in paragraph (a)(3) of this 

section along each belt conveyor haulageway where a belt 

conveyor is operated. 

30 C.F.R. § 75.362(b). 

 Thus, the Secretary seeks to impose $50,024.00 for the four alleged unwarrantable 

citations at issue. In addition, the captioned civil penalty matters each contain one additional 

citation, for which the parties have reached an agreement. With regard to 104(a) Citation 

No. 8251922 in Docket No. KENT 2012-1321, the settlement terms include reducing the degree 

of negligence attributable to the Respondent, from moderate to low, and reducing the civil 

penalty from $1,500.00 to $850.00. With regard to Order No. 8265806 in Docket No. KENT 

2012-1403, the settlement terms include modifying the 104(d) order to a 104(a) citation to reflect 

that the violative condition was not the result of an unwarrantable failure, and reducing the civil 

 1

 As a general matter, an unwarrantable failure occurs when a violation is attributable to 

aggravated conduct rather than ordinary negligence. Emery Mining, 9 FMSHRC 1997, 2001 (Dec. 1987). 

36 FMSHRC Page 1055
penalty from $9,122.00 to $4,000.00. The parties’ partial settlement agreement, which was 

approved on the record, imposes a civil penalty of $4,850.00 for the two citations addressed 

therein. (Tr. 8-10). 

I. Statement of the Case 

As discussed below, I will defer to the opinion of the issuing mine inspectors that the 

cited roof and rib conditions constituted violations of section 75.202(a). Given the hazardous 

nature of adverse roof and rib conditions, the violations were properly designated as significant 

and substantial (“S&S”).2 However, the unwarrantable failure designations for the three subject 

violations cannot be affirmed for several reasons. As an initial matter, the cited rib and roof 

conditions lack specificity with respect to the nature and extent of the alleged violations. As 

discussed below, the citations contain general allegations of cracks ranging from one to twelve 

inches from the edge of ribs, without specifying whether the majority of the cracks were closer to 

one inch or to twelve inches from the edge. Thus, the obviousness and extent of the danger

posed by the cited rib conditions cannot be determined. 

The Secretary relies on duration and obviousness to prove an unwarrantable failure, 

asserting that the alleged hazardous rib conditions existed and went unattended for at least 

one month. However, the alleged violative conditions cited on February 1, 2012, by issuing 

inspectors who were not familiar with the conditions in the Voyager No. 7 Mine, were not 

supported by the opinion of the regular quarterly MSHA Inspector who had observed the rib 

conditions in the same areas of the No. 4 Entry between January 17 and January 23, 2012. 

The record also precludes a finding of aggravated conduct because MCC was prejudiced 

by virtue of the fact that it was not given an opportunity to accompany the inspectors. This is 

particularly important because the lack of MCC’s participation prevented it from having the 

inspectors identify, in MCC’s presence, the nature, extent and location of each alleged hazardous 

rib condition, facts that are not adequately set forth in the general language of the citations. 

(Gov. Ex. A, B, C); See, SPC Investments, LLC, 31 FMSHRC 821, 827-28 (Aug. 2009).

Finally, the inadequate on-shift citation shall be vacated, given the inadequate description 

of the hazardous conditions that are alleged to have been overlooked by MCC’s on-shift 

examiners. Moreover, as discussed below, a determination of inadequate on-shift examinations 

would require a finding that several regular EO-1 MSHA inspections of the same areas that 

occurred shortly before February 1, 2012, were also inadequate, as they did not disclose any 

adverse roof or rib conditions. 

II. Findings of Fact

The Voyager No. 7 Mine is an underground coal mine located in Martin County, 

Kentucky. The mine was acquired from Massey Energy Company by Alpha Natural Resources 

in June 2011. (Tr. 407). Though now idle, On February 1, 2012, when the relevant citations 

 2

 Generally speaking, a violation is S&S if it is reasonably likely that a hazard contributed to 

by the violation will result in an accident causing serious injury. Cement Division, National 

Gypsum, 3 FMSHRC 822, 825 (April 1981). 

36 FMSHRC Page 1056
were issued, the mine had one working section. (Tr. 489, 491). The cited roof and rib conditions 

along the No. 1, 2 and 3 belts were located in the No. 4 Entry. The three conveyor belts totaled 

approximately 11⁄2 miles in length. (Tr. 117, 126). The belts were approximately eight feet from 

the ribs on the walkway side, and two feet from the ribs on the off-walkway (maintenance) side. 

(Tr. 67-68). The ribs separating the entries and crosscuts along the belts were approximately 

fifty to sixty feet in length, and six feet high. (Tr. 94, 202). At the time of the February 1, 2012, 

inspection, there were two productions shifts at the Voyager No. 7 Mine. The day shift was from 

6:00 a.m. to 3:00 p.m., and the evening shift was from 3:00 p.m. to 12:00 a.m. (Tr. 56-57, 23). 

 Regular quarterly inspections of MCC’s Voyager No. 7 underground mine, designated by 

MSHA as EO-1 inspections, were conducted by MSHA Inspectors assigned to the Martin 

County field office. Since 2010, MSHA Martin County Inspector Robert Wise had been 

assigned to conduct the inspections at the Voyager No. 7 Mine. (Tr. 405-06). Wise testified that 

it is common for MSHA Inspectors to be on-site on a regular basis for the entire three month 

quarter in relatively large mines such as Voyager No. 7. (Tr. 472). Wise normally conducted his 

inspections during the day shift, at which time he provided an opportunity for MCC 

representatives to accompany him. (Gov. Ex. G). 

During January 2012, the month prior to the issuance of the subject citations, Wise was 

on-site conducting inspections on twelve separate days. (Tr. 414). As part of his routine EO-1 

inspection duties, Wise inspected the roof and rib conditions along the No. 1, 2 and 3 belts. 

Wise testified that his quarterly inspection was on schedule, and that he had not requested any 

assistance in completing his inspection assignment. (Tr. 414, 434). Consequently, he neither 

expected nor requested a supplemental EO-1 inspection by inspectors assigned to an MSHA 

office other than Martin County. 

Wise inspected the No. 3 Belt line and its roof and rib conditions on January 17, 2012, 

at which time he was accompanied by Kenny Hunt, MCC’s superintendent of Voyager No. 7. 

(Tr. 418, 425). Wise inspected the rib and roof conditions along the No. 2 belt line on January 

18, 2012, at which time he was accompanied by Foreman Timothy Stratton. (Tr. 424-25). Wise 

examined the roof and rib conditions along the No. 1 Belt line on January 23, 2012, once again 

accompanied by Kenny Hunt. (Tr. 429). In each case, Wise failed to observe any violative roof 

or rib conditions along any of the belts. 3 (Tr. 421-22, 425-27, 430). Wise testified that opinions 

concerning whether the nature and extent of a cracked rib creates a hazard that requires remedial 

action are frequently subjective. (Tr. 441-42). 

Wise also routinely reviewed the belt examination books as part of his inspection duties. 

(Tr. 432). Wise testified that he did not find the on-shift examinations inadequate, as he did not 

find any evidence of unreported hazardous roof or rib conditions. (Tr. 433). In this regard, the 

on-shift record book reflected that some actions had been taken to correct adverse roof or rib 

conditions in the weeks preceding the February 1, 2012, inspection. (Tr. 59-61, 241-44; Gov. 

Ex. M at 1, 3, 6). 

 3

 Wise’s testimony that he did not observe any hazardous roof or rib conditions is significant, 

as the relevant testimony and notes of the issuing inspectors reflect that the cited roof and rib 

conditions existed for at least a month. (Tr. 167-173; Gov. Ex. E at 4, 5, 7). 

36 FMSHRC Page 1057
 On January 31, 2012, MSHA received an anonymous complaint alleging inadequate 

ventilation at the Voyager No. 7 Mine. (Tr. 52). Section 103(g)(1) of the Act authorizes 

MSHA to investigate safety related complaints received from miners. 30 U.S.C. § 813(g)(1). 

The complaint was referred to MSHA’s Pikeville, Kentucky office for investigation, designated 

by MSHA as an EO-3 investigation. (Tr. 65, 179). Normally an EO-3 related inspection 

requires two or three inspectors. (Tr. 180, 183). However, on February 1, 2012, six inspectors 

and a special investigator were dispatched from the Pikeville Office to the Voyager No. 7 Mine. 

(Tr. 180, 183). 

Special Investigator Venita Branham’s assignment was to take control of the surface 

phones when she arrived at the mine to prevent any underground communication which would 

have provided advance notice of the inspection. (Tr. 356-58, 364). Although Wise testified that 

he did not require any assistance in fulfilling his EO-1 responsibilities, at some point between 

departing their office and arriving at the mine site, the Pikeville personnel decided to divide into 

two groups, thus morphing their initial EO-3 inspection into an additional EO-1 inspection. 

(Tr. 64-66, 414). Inspectors Robert McIntosh, Billy Buchanan and Silas Adkins were to 

investigate the EO-3 ventilation complaint, while Inspectors Lester Keith Preece, Benjamin 

Adams, and James Reynolds4

 were to conduct a supplemental regular quarterly EO-1 inspection 

of the belts and surrounding areas.5 (Tr. 51, 64, 318-19). 

 The inspection party arrived at the Voyager No. 7 Mine at approximately 7:30 p.m., 

at which time Branham took control of the Mine Office phone. (Tr. 51, 353-354). Branham 

informed Shannon Rowe in the Mine Office of the arrival of MSHA Inspectors, and ordered 

Rowe not to call underground. (Tr. 357-58). Inspectors McIntosh, Buchanan, Adkins, Preece, 

Adams and Reynolds proceeded underground. McIntosh, Buchanan and Adkins investigated 

the ventilation complaint and determined that it lacked merit. (Tr. 178). 

Once underground, Preece and Adams proceeded to perform a regular EO-1 inspection 

by traversing the No. 4 Entry along the No. 1, 2 and 3 belts. (Tr. 66, 272). Preece noted 

that inspectors rarely perform regular EO-1 inspections without being accompanied by a 

representative of the mine operator, estimating that only one to three percent of inspections 

are unaccompanied. (Tr. 185-86). Preece testified that, before entering the mine, MCC was 

prevented from arranging for any company representatives to accompany either the EO-1 or the 

EO-3 inspection parties while underground. (Tr. 186). Upon arriving at the No. 1 Belt, Preece 

further testified that he met Brandon McKinney, foreman of the rehab crew. (Tr. 258-59). 

Although Preece remembered talking to McKinney underground, he could not recall what was 

said. (Tr. 259). However, Preece testified that he did not explicitly inquire as to whether an 

 4

 Although Reynolds participated in the EO-1 inspection, he did not testify in this matter, 

or issue any of the citations that are the subjects of these proceedings. It is unclear from the record 

whether Reynolds walked the No. 1, 2 and 3 belts with Preece and Adams, or whether 

he proceeded to inspect nearby areas independently. 

5

 Preece conceded that, to his knowledge, this was the first time an inspection conducted in 

response to a complaint and a regular quarterly inspection occurred simultaneously. (Tr. 181). 

36 FMSHRC Page 1058
MCC representative wanted to accompany him during his EO-1 inspection of the belts. (Tr. 186-

88). Preece speculated that McKinney would have declined to participate in the inspections, as 

McKinney was the only foreman supervising miners underground. (Tr. 259). 

Similarly, with regard to whether an MCC representative was provided with an 

opportunity to participate in the inspection, Adams testified: 

Q: Did you at any time ask anyone from the Voyager Mine if they wished to 

 accompany you? 

A: I did not. No. 

Q: Did you hear anyone offer any individual from the Voyager Mine the 

 opportunity to travel with you? 

A: I didn’t hear anyone. No. 

Q: To travel with Keith Preece? 

A: No. 

Q: To travel with James Reynolds? 

A: No. 

(Tr. 321-22). 

 Preece and Adams proceeded to traverse along the No. 1, 2 and 3 belts, paying particular 

attention to the surrounding roof and rib conditions. Preece and Adams testified that they 

observed a total of approximately fifty cracks, approximately 1-11⁄2 inches wide, in the ribs 

surrounding the No. 1, 2 and 3 belts. The inspectors testified that the approximately one inch 

wide cracks were anywhere from one to twelve inches from the pillar’s edge, extending from 

the roof down to either the floor or center of the pillar. (Tr. 72-74, 101, 107-08, 273, 279-80, 

290-91). Specifically, Preece testified that they observed approximately 26 cracks along the 

No. 1 Belt, 16 along the No. 2 Belt, and 7 along the No. 3 belt. (Tr. 115). They opined that the 

cracks they observed created the risk that slices of the pillars ranging from one to twelve inches 

were at risk of separating and falling. (Tr. 77, 273). Significantly, neither the testimony nor 

the citations, as quoted below, adequately quantify how many of the cited rib cracks posed a 

significant hazard, i.e., differentiating those that were approximately one inch from the edge of 

the rib from those that were approximately twelve inches from the edge. 

In addition to his observation of rib cracks along the No. 1 belt, Preece also observed 

two loose roof bolts, and a wide entry where roof bolts were 54-72 inches (rather than the 

required 48 inches) from the rib. (Tr. 96, 78). However, Preece testified that the wide area may 

have been cut wide, rather than a widening as a result of a rib fall, as there was no roof material 

observed on the mine floor. (Tr. 78, 234). Along Belt No. 3, Preece and Adams observed fallen 

36 FMSHRC Page 1059
material in a crosscut, and noted that the bolt above was approximately 74 inches from the rib. 

This indicated that a crack in the rib had separated (a “rib roll”) allowing 26 inches of material 

to break off and fall. (Tr. 106-07, 282-83). 

The specifics of the citations are as follows. 

Citation No. 8265796 (Belt No. 1), issued by Inspector Preece, alleges: 

The roof, face, and ribs of areas where miners work or travel is not 

being supported or otherwise controlled to prevent falls of the roof 

and ribs along the co. No. 1 belt conveyor on the off walk way 

side. The ribs are broken and are hanging loose from 1 inch up to 

12 inches in the following locations. Between crosscuts 4-5, 

12-13, 15-16, 18-19, 20-24, 26-27, 38-42, 46-51, 53-58, 60-63. 

Between crosscut 15-16 the entry is 23 feet 8 inches in width. 

Between crosscut 17-19 there [are] 2 permanent roof supports 

(roof bolts) that are hanging from the mine roof from 4 inches up 

to 8 inches. On-shift examinations are conducted each shift on a 

daily basis to recognize and correct hazardous conditions by a 

certified foreman. These hazardous conditions are obvious to the 

most casual observer. These hazards have not been recognized or 

recorded and no additional support has been installed in the cited 

areas. This is an unwarrantable failure to comply with a 

mandatory standard. 

Standard 75.202(a) was cited 19 times in two years at mine 

1519193 (19 to the operator, 0 to a contractor). 

(Gov. Ex. A) (emphasis added). 

 Order No. 8265798 (Belt No. 2), issued by Inspector Preece, alleges: 

The roof, face, and ribs of areas where miners work or travel is not 

being supported or otherwise controlled to prevent falls of the roof 

and r[i]bs along the co. No. 2 belt conveyor on the off walk way 

side. The ribs are broke[n] and hanging loose from 1 inch up to 

12 inches in the following locations. Between crosscut 3-4 

(offside), 4-5 (walkway side), and crosscut 6-20 (offside). On-shift 

examinations are conducted each shift on a daily basis to recognize 

and correct hazardous conditions by a certified foreman. These 

hazardous conditions are obvious to the most casual observer. 

These hazards have not been recognized or recorded and no 

additional supports ha[ve] been installed in these areas. This is an 

unwarrantable failure to comply with a mandatory standard. 

36 FMSHRC Page 1060
Standard 75.202(a) was cited 20 times in two years at mine 

1519193 (20 to the operator, 0 to a contractor). 

(Gov. Ex. B) (emphasis added). 

 Order No. 8265804 (Belt No. 3), issued by Inspector Adams, alleges: 

The roof, face and ribs of areas where miners work or travel are 

not being supported or otherwise controlled to prevent falls of the 

roof and ribs along the company No. 3 belt conveyor. The crosscut 

between No. 3 take-up and the track entry has the outby [ ] rib 

rolled out leaving wide bolts measuring from 52 [inches] to 74 

[inches] from the rib through this area, exposing the loose and 

broken ribs. Loose hanging ribs were observed from [the] No. 1 

to the No. 4 crosscut on the offside of the belt. Crosscuts No. 6 

through No. 7 have loose hanging ribs on both sides. Between 

crosscuts No. 11 and No. 12 loose hanging ribs were observed on 

the offside. Between No. 16 and No. 17 loose ribs were observed 

on the walkway side. Onshift examinations are conducted each 

shift on a daily basis to recognize and correct hazardous conditions 

by a certified foreman. These hazardous conditions are obvious to 

the most casual observer. These hazards have not been recognized 

or recorded and no additional support ha[s] been installed in the 

cited areas. This is an unwarrantable failure to comply with a 

mandatory standard. 

Standard 75.202(a) was cited 21 times in two years at mine 

1519193 (21 to the operator, 0 to a contractor). 

(Gov. Ex. C) (emphasis added). 

 Preece and Adams testified these conditions were reasonably likely to result in injuries 

caused by falling rock, noting that separated ribs are subject to vibrations from the belt line, 

contact with mine equipment, and gravitational forces. (Tr. 118-121, 295, 299-300). They 

testified that miners frequently work along the belts to perform maintenance and conduct belt 

inspections. (Tr. 117, 278). They also concluded that any injury would have been serious, based 

on a mine industry history of fatal roof fall and rib roll accidents. (Tr. 118, 296). Consequently, 

the three cited violative conditions were designated as S&S. Preece testified that, with respect to 

Belt No. 1, even if no loose ribs had been found, the wide entry and loose roof bolts would have 

been enough for an S&S designation. (Tr. 96-99). Preece and Adams also attributed their 

citations to unwarrantable failures. They concluded the negligence attributable to MCC was 

sufficient to support unwarrantable failures, primarily due to the approximately fifty cracked and 

loose ribs that they observed. (Tr. 130-31, 297). 

 At trial, consistent with his deposition testimony and his notes, Preece testified that 

the alleged hazardous conditions along the No. 1, 2 and 3 Belts existed for at least one month. 

36 FMSHRC Page 1061
(Tr. 167-173). Apparently aware that Wise had not observed these hazards during his EO-1 

inspections, Preece modified his opinion by testifying that the cited conditions only existed for 

multiple shifts. (Tr. 131). It is not credible that the majority of the approximately fifty cited 

rib conditions in the No. 4 Entry were only several shifts in duration. In any event, regardless 

of their exact duration, Preece concluded the failure of belt examiners to note these multiple 

conditions constituted inadequate on-shift examinations. Consequently, Preece issued Order 

No. 8265805 alleging a violation of section 75.362(b). (Tr. 131-32, 142-43). Preece designated 

the violation as S&S and attributable to an unwarrantable failure. Order No. 8265805 states: 

An adequate onshift examinations is [sic] not being conducted on 

the company No. 1, 2, 3 and 4 conveyor belts as stated in citations 

and order numbers, 8269893, 8269894, 8269895, 8265794, 

8265795, 8265796, 8265797, 8265798, 8265804, 8265799, 

8265800, 8265801, and 8265803. Hazardous conditions existed 

along these conveyor belts for more than one shift and the 

examiners failed to recognize, record and correct these obvious 

hazardous conditions. The preshift/onshift examiners are the front 

line of defense in hazard recognition and correcting these 

conditions. The examiner had previously traveled these cited areas 

with none of the hazards recorded in the exam books. In failing to 

conduct an adequate onshift exam, miners are put at risk to work or 

travel in these areas. This is an unwarrantable failure to comply 

with a mandatory standard. The operator engaged in more than 

ordinary negligence in failing to identify these hazards. 

All examiners shall receive additional training on hazard 

recognition on regulations 75.362 and 75.363 as for the 

termination of this 104(d)(1) order. 

(Gov. Ex. D).6

 

 

 6

 Order No. 8265805 refers to citations that were issued by Inspector Reynolds, in mine areas 

other than along Belt Nos. 1, 2 and 3. Reynolds did not testify in these proceedings. At trial, MCC’s 

objection to the admission of these citations into evidence was sustained for lack of foundation. 

Moreover, MCC did not have an opportunity to depose Reynolds, as he was not identified as a witness of 

the Secretary during pre-trial submissions. (Tr. 133-36). In any event, Preece testified that the cited 

cracked rib conditions along the No. 1, 2 and 3 Belts were the primary basis for alleging the on-shift 

examinations were inadequate. (Tr. 137-40, 148). 

36 FMSHRC Page 1062
Wise could not adequately explain how the Pikeville inspectors observed so many 

hazardous rib conditions given that he failed to observe any significant roof or rib hazards during 

his inspections of the No. 4 Entry only two weeks before.7

 In this regard, on cross-examination, 

Wise testified: 

Q: Okay. And you’ve seen the – You’ve seen the enforcement actions that [Preece 

 and Adams] wrote? 

A: Yes. 

Q: It was pretty drastic, wasn’t it? 

A: Yes. 

Q: You never saw the conditions that were claimed to exist in these violations 

 written by the Pikeville MSHA people, did you? 

A: I didn’t see anything when I went through there. 

Q: You were very surprised and shocked when you heard about these enforcement 

actions that were lodged against Voyager, weren’t you? 

A: Yes. 

Q: Now, just backtracking from February 1, 20— 

COURT: Let me ask you, Mr. Wise. Why were you surprised and shocked at the citations? 

A: Because I had traveled those belts and I hadn’t seen the same conditions that they 

 did. 

(Tr. 435-36). 

Both Preece and Wise noted that inspectors can reasonably disagree on whether roof or 

rib conditions caused by sloughage, a common occurrence in underground mines, pose hazards 

that require corrective action. (Tr. 147, 448). Having failed to note during his inspections 

the conditions cited by Preece and Adams, Wise conceded that he did not believe the cited 

conditions were obvious. (Tr. 443-44). 

 7

 For example, Wise tried to explain the disparity between his observations and those of Preece 

and Adams by stating that he had inspected the roof and ribs while walking on the opposite side of the 

belts than that traversed by the Pikeville inspectors. (Tr. 436, 445-47). However, on cross-examination, 

Wise admitted that he walked on the same side as Preece along Belt No. 1 (the longest of the three with 

the greatest number of cited conditions). (Tr. 436, 445-47). 

36 FMSHRC Page 1063
 In order to view the cited areas in preparation for abatement, Hunt, Stratton and Safety 

Representative Joey Hammonds walked the belts on February 2, 2012, the morning after the 

citations were issued. (Tr. 519-20, 566, 585). Although they testified that they observed 

some cracked ribs, they maintained there were significantly fewer than fifty, and that the cracks 

they observed posed little, if any, hazard. (Tr. 542-44, 571-72, 589-91). In this regard, MCC’s 

witnesses testified that it was very difficult to scale down the loose material, indicating that it 

would not have fallen on its own. (Tr. 521-23, 541, 569, 589-590). 

Wise testified that when he arrived at the mine on the morning of February 3, 2012, 

a number of the cited conditions were still being abated. (Tr. 396-400). Wise explained that 

every cited condition must be addressed in order to be considered abated, and that his oversight 

of the abatement did not necessarily reflect his opinion regarding the conditions alleged in 

the citations. (Tr. 456-58). Consequently, the fact that Wise abated the citations is of little 

evidentiary significance with respect to obviousness and the degree of negligence attributable 

to MCC. 

III. Further Findings and Conclusions

1. Evidentiary Framework

The Secretary has the burden of proving each element of a citation by a preponderance 

of the evidence. Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989). 

In articulating the preponderance of the evidence standard, the Commission has stated: “[t]he 

burden of showing something by a ‘preponderance of the evidence,’ the most common standard 

in the civil law, simply requires the trier of fact ‘to believe that the existence of a fact is more 

probable than its nonexistence.’” Rag Cumberland Resources Corp., 22 FMSHRC 1066, 1070 

(Sept. 2000) (citations omitted). 

As an initial matter, Preece’s testimony and notes reflect that the alleged hazardous 

conditions along the No. 1, 2 and 3 Belts existed for at least one month. (Tr. 167-173; Gov. 

Ex. E at 4, 5, 7). Thus, the evidence reflects that the rib and roof conditions observed by Preece 

and Adams on February 1, 2012, were substantially similar to those observed by Wise during 

his regular EO-1 inspections on January 17, January 18, and January 23, 2012. Resolution of 

whether the Secretary has satisfied his burden of proof with respect to the fact of the violation, 

S&S, and unwarrantable failure requires reconciling the observations of Preece and Adams with 

Wise’s regular EO-1 inspections of the same areas of the mine, as well as the testimony of MCC 

personnel who participated in the abatement. While Wise’s failure to confirm the observations 

of Preece and Adams does not estop the Secretary from demonstrating the fact of a violation, 

the Commission has noted that prior inconsistent MSHA actions may be a mitigating factor in 

determining negligence. Mach Mining, LLC, 34 FMSHRC 1769, 1774 (Aug. 2012) (citing 

King Knob Coal Co., 3 FMSHRC 1417, 1422 (June 1981)). 

36 FMSHRC Page 1064
2. Rib and Roof Condition Citations

As the majority of the cited conditions in Citation No. 8265796 and Order Nos. 8265798 

8265804 involve similar roof and rib conditions, these citations will be addressed collectively.8

 

a. Fact of the Violation

As previously noted, the majority of the cited conditions observed by Inspectors Preece 

and Adams involve alleged compromised ribs. The inspectors testified that, as a general matter, 

they observed a total of approximately fifty loose ribs that were the result of cracks measuring 

approximately one inch wide, extending either from the floor or center of the six foot pillar 

to the roof, that were anywhere from 1-12 inches from the edge of the pillar. (Tr. 107-08, 115, 

290-91). Consequently, the Inspectors opined that slabs of rib, from one to twelve inches thick, 

were at risk of separating from the pillar and falling. (Tr. 77, 273). Preece also observed two 

loose roof bolts and a wide entry along Belt No. 1. (Tr. 96, 78). In addition, the inspectors 

testified that they observed a rib roll with fallen material resulting in a wide entry in a crosscut 

along Belt No. 3. (Tr. 106-07, 282-83). 

In their citations, both Preece and Adams characterized the cited roof and rib hazards 

as “hazardous conditions [that] are obvious to the most casual observer.” (Gov. Exs. A, B, C). 

The rub is that the record reflects that the cited conditions apparently may not have been obvious 

to a casual observer. In this regard, the Secretary’s witness, Inspector Wise, conceded that he 

“hadn’t seen the same conditions that [Preece and Adams] did” when Wise travelled the three 

belt entries in the period preceding the February 1, 2012, inspection. (Tr. 436). 

 Consistent with Wise’s testimony, Hunt, Stratton and Hammonds, who observed the 

subject roof and rib conditions on the morning of February 2, 2012, testified that there were 

significantly fewer than fifty discernible cracks, and that the cracks they observed were a result 

of sloughage that was not hazardous. (Tr. 542-44, 571-72, 589-91). They summarized their 

participation in the abatement by testifying that much of the cited loose material would not have 

fallen on its own because it was difficult to scale. (Tr. 521-23, 541, 569, 589-590). 

 The cited mandatory standard in section 75.202(a) requires roof and rib areas where 

persons work or travel to be adequately supported or controlled to protect persons from hazards 

related to falling material. Significant testimony fairly detracts from the weight of evidence 

supporting the Secretary’s assertion of obvious and extensive rib hazards. However, it is 

reasonable to conclude that at least some of the rib cracks required scaling or supplemental 

support to ensure that the surrounding area was adequately controlled as required by section 

75.202(a). In this regard, the Commission has held that the opinion of an MSHA inspector 

that a condition is hazardous is entitled to great weight. See, Harlan Cumberland Coal Co., 

20 FMSHRC 1275, 1278 (Dec. 1998); see also, Buck Creek Coal, Inc., 52 F.3d 133, 135-36 

(7th Cir. 1995). Consequently, the evidence when viewed in its entirety is sufficient to support 

the fact of the violations of section 75.202(a), even if the number of hazardous conditions that 

required remedial action was significantly less than that alleged. 

 8

 The parties also jointly addressed all three citations in their briefs. Sec’y Br. at 8; Resp. Br. at 

29. 

36 FMSHRC Page 1065
b. Significant and Substantial

As a general proposition, a violation is properly designated as S&S in nature if, based 

on the particular facts surrounding that violation, there exists a reasonable likelihood that 

the hazard contributed to by the violation will result in an injury or an illness of a reasonably 

serious nature. Cement Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission explained: 

In order to establish that a violation of a mandatory safety standard is [S&S] 

under National Gypsum, the Secretary of Labor must prove: 

(1) the underlying violation of a mandatory safety standard; (2) a 

discrete safety hazard - that is, a measure of danger to safety - 

contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to [by the violation] will result in an injury; and 

(4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature. 

Id. at 3-4; see also Austin Power Inc., v. Sec'y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), 

aff'g 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). With respect to the third 

element of Mathies, an S&S finding requires a determination that the violation contributes 

significantly and substantially to the cause and effect of a hazard. U.S. Steel Mining Co., Inc. 

6 FMSHRC 1866, 1868 (Aug. 1984). Resolution of whether a particular violation of a 

mandatory standard is S&S in nature must be made assuming continued normal mining 

operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). Thus, consideration 

must be given to both the time frame that a violative condition existed prior to the issuance 

of a citation, and the time that it would have existed if normal mining operations had continued. 

Bellefonte Lime Co., 20 FMSHRC 1250 (Nov. 1998); Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 

1986). In the final analysis, the essence of an S&S violation is whether it is reasonably likely 

that the hazard contributed to by the violation will result in an event in which there are serious or 

fatal injuries. Bellefonte, 20 FMSHRC at 1254-55. 

 With respect to the Mathies criteria, it is obvious that the first, second and fourth criteria 

are satisfied, in that a violation of a mandatory standard has occurred that creates a discrete 

safety hazard to mine personnel in the belt entries, and that such mine personnel are reasonably 

likely to sustain serious injuries by their exposure to the hazard created. The remaining third 

Mathies criterion requires an evaluation of the likelihood of a roof fall injury-causing accident. 

I credit Preece and Adams’ testimony that both belt examiners and maintenance 

personnel regularly travel and work along conveyor belts. (Tr. 116-17, 278). Consequently, 

they are routinely exposed to hazardous roof and rib conditions that are not adequately 

controlled. Compromised roof and rib conditions are, by nature, hazardous and unpredictable. 

Adequate rib and roof control is fundamental to creating and maintaining a safe mining 

environment. Having credited Preece and Adams’ observations that at least some cracks 

required remedial action, it is reasonably likely, in the context of continued mining operations, 

that MCC belt examiners and belt maintenance personnel who continue to be exposed to 

36 FMSHRC Page 1066
unattended hazardous roof and rib conditions will be struck by falling material that will cause 

serious or fatal injury. Consequently, the citations concerning adverse roof and rib conditions 

are properly designated as S&S. The violations are serious in gravity in view of their potential 

for serious injury. 

c. Unwarrantable Failure

The elements of unwarrantable conduct are well settled. The Commission has 

determined that an unwarrantable failure is aggravated conduct constituting more than ordinary 

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

characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” 

or a “serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 

13 FMSHRC 189, 193-194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d at 135-36 (approving 

the Commission's unwarrantable failure test). 

The Commission examines various factors in determining whether a violation is 

unwarrantable, including the extent of a violative condition, the length of time that it has existed, 

whether the violation is obvious, whether the violation poses a high degree of danger, whether 

the operator has been placed on notice that greater efforts are necessary for compliance, and the 

operator's compliance efforts made prior to the issuance of the citation or order. Enlow Fork 

Mining Co., 19 FMSHRC 5, 11-12, 17 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 

195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, 

Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984). 

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.9

 Peabody, 14 FMSHRC at 1263-64. 

 MSHA inspectors must be encouraged to issue citations when they believe miners may 

be exposed to violative hazardous conditions. Consequently, I have deferred to the broad 

discretion of Preece and Adams with respect to the fact of the violations. However, the question 

of unwarrantable failure is an entirely different matter. A prime example of an unwarrantable 

failure is an obvious and/or extensive violation that poses a high degree of danger that has 

existed for a considerable period of time. None of these elements can be discerned from the 

general language of Preece and Adams’ citations. In this regard, with respect to obviousness, 

extensiveness and the hazard posed, the citations do not reflect what proportion of the cited rib 

cracks were only one inch from the edge of the rib, or precisely on which ribs such cracks were 

located. Fundamental fairness, if not due process, requires more. 

 Moreover, the boilerplate language in the citations that the cited conditions were 

“obvious to the most casual observer” does not make it so. Facts matter. In other words, 

it is the evidentiary facts that render a condition obvious. The general descriptions in the subject 

citations do not satisfy the Secretary’s burden of demonstrating that the conditions were obvious 

 9

 While not dispositive, it is noteworthy that the history of violations in these matters includes 

prior violations committed by Massey Energy Company, a previous unrelated corporate operator of the 

Voyager No. 7 Mine. 

36 FMSHRC Page 1067
to the casual observer, particularly in this instance, where they were not obvious to 

Inspector Wise. Significantly, at trial Wise, who was familiar with the general conditions 

in the mine, indicated that he was shocked at the number of conditions cited by Preece and 

Adams, and he conceded that the enforcement actions in the citations appeared to be drastic. 

(Tr. 435-36). The inconsistent findings of Wise may be considered as a mitigating factor in 

determining negligence. Mach Mining, LLC, 34 FMSHRC at 1774. 

Wise directed abatement of the citations by requiring scaling and supplemental support. 

(Tr. 396-400). However, he testified that the scaling and additional support was a required 

response to abate the citations, and that it did not reflect his view as to whether violations had 

occurred. (Tr. 456-58). 

 With respect to the importance of a mine operator’s participation in inspections, the 

statutory scheme of the Mine Act recognizes that mine operators must play an active role in 

creating and maintaining a safe mining environment. 30 U.S.C. § 801(e). To achieve this goal, 

section 103(f) of the Mine Act requires, in relevant part, that “[s]ubject to regulations issued by 

the Secretary, a representative of the operator . . . shall be given an opportunity to accompany 

the Secretary or his authorized representative during the physical inspection of any coal or other 

mine . . . for the purpose of aiding such inspection. . . .” 30 U.S.C. § 813(f). This statutory 

language places an affirmative duty on an MSHA inspector to provide a mine operator with 

the opportunity to accompany him during an inspection. 

The fundamental importance of mine operators accompanying inspectors is evidenced by 

Preece’s testimony that mine operators accompany inspectors approximately 97 percent of the 

time. (Tr. 185-86). Moreover, it is standard operating procedure for inspectors to provide the 

opportunity for accompaniment, as reflected in Inspector Wise’s notes that require documenting, 

at the beginning of each day’s inspection, whether or not the mine operator declined to 

accompany the inspector. (Gov. Ex. G at 1, 10, 17, 21, 27, 33, 38, 42, 48, 50, 53, 58, 63, 70). 

Satisfaction of this affirmative obligation to provide mine operators with an opportunity to 

participate cannot be accomplished by simply shifting to the mine operator the responsibility 

to seek permission to “tag along” during an MSHA inspection. While I am cognizant that 

MSHA is not required to provide advance notice of inspections, the statutory provisions of 

section 103(f) must be adhered to once the presence of an inspector is known because he has 

arrived underground. 

 The Commission addressed the issue of a mine inspector’s failure to provide an 

opportunity for a mine operator’s accompaniment in SCP Investments, LLC, 31 FMSHRC 821 

(August 2009). Although the Commission concluded that the failure to provide an opportunity 

as provided in section 103(f) is not jurisdictional, the Commission stated that “under section 

103(f) and our case law, the right of the operator to accompany the inspector during an 

inspection is an important right” which may not be curtailed without legal remedy. Id. at 825, 

834. The Commission further noted that evidence may be excluded when walk-around rights 

are violated, if the mine operator can demonstrate prejudice. Id. at 835 (citations omitted). 

36 FMSHRC Page 1068
The prejudice to MCC in this case is self-evident. As noted by Commissioners Young 

and Cohen, the failure to include operators during an inspection precludes the resolution of 

factual disputes that otherwise could be resolved on-site. Id. at 828. The mine operator’s 

participation is particularly crucial in this case, where the inspectors could have directed MCC’s 

attention with respect to the precise extent and location of each crack, and the hazards that the 

inspectors believed required remedial action. Thus, the prejudice caused by MSHA’s failure 

to provide MCC with an opportunity to participate in the inspection provides an additional basis 

for deleting the unwarrantable failures. 

 In summary, while the nature and extent of the conditions observed by Preece and 

Adams, which were not confirmed by Wise, may have been attributable to an unwarrantable 

failure, the evidence, when viewed in its entirety, is insufficient to reach such a conclusion. 

Significantly, the Secretary does not contend that Wise’s inspections were perfunctory in nature. 

Rather, the evidence reflects that the cited conditions are attributable to no more than a moderate 

degree of negligence. Accordingly, the unwarrantable designations in Citation No. 8265796 and 

Order Nos. 8265798 and 8265804 shall be deleted. As a result, 104(1) Citation No. 8265796 and 

104(d)(1) Order Nos. 8265798 and 8265804 shall be modified to 104(a) citations. 

d. Civil Penalties 

The Commission outlined the parameters of its responsibility for assessing civil penalties 

in Douglas R. Rushford Trucking, 22 FMSHRC 598 (May 2000). The Commission stated: 

The principles governing the Commission’s authority 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 “authority to assess all civil penalties 

provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of 

proposing penalties to the Secretary. 30 U.S.C. § § 815(a) and 820(a). Thus, 

when an operator notifies the Secretary that it intends to challenge a penalty, 

the Secretary petitions the Commission to assess the penalty. 29 C.F.R. §§ 

2700.28 and 2700.44. The Act requires that, “[i]n assessing civil monetary 

penalties, the Commission [ALJ] shall consider” 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 of the operator’s ability to continue in business, [5] 

the gravity of the violations, and [6] the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance after 

notification of a violation.

22 FMSHRC at 600 (citing 30 U.S.C. § 820(i)). 

36 FMSHRC Page 1069
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). Once findings on the statutory criteria have been made, a judge’s penalty 

assessment for a particular violation is an exercise of discretion, which is bounded by proper 

consideration for the statutory criteria and the deterrent purposes of the Act. Id. at 294; Cantera 

Green, 22 FMSHRC 616, 620 (May 2000). The Commission has noted that the exercise of its de 

novo authority to assess civil penalties does not require “that equal weight must be assigned to 

each of the penalty assessment criteria.” Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 

(Sept. 1997). 

 While the Voyager No. 7 Mine apparently is idle (Tr. 489), MCC does not contend that 

the proposed penalties in this matter are disproportionate to its size. The cited rib and roof 

conditions were serious in gravity, but are attributable to no more than a moderate degree of 

negligence. The record reflects the cited violations were abated in good faith and in a timely 

manner. It is true that the history of violations during the previous two years, as noted in the 

citations, would ordinarily be an aggravating factor, despite the change in mine ownership. 

However, in this case, the violation history is less significant as the Secretary has failed to 

demonstrate the violations were obvious, given the conflicting testimony by the Secretary’s 

witnesses. 

In view of the reduction in negligence, and the paucity of evidence with regard to the 

specific nature, extent and location of the cited conditions, a civil penalty of $4,000.00 shall be 

assessed for each of these 104(a) citations. 

3. On-Shift Examination Citation

As a threshold matter, in resolving whether a violation of a regulation requiring an 

examination has occurred, the proper inquiry is whether the subject examination was adequately 

performed. See, e.g., RAG Cumberland Resources LP, 26 FMSHRC 639, 647 (Aug. 2004) 

(holding that although mandatory standards may not explicitly require adequate or effective 

measures by mine operators, such a requirement is implicit in the standard's underlying 

purpose), aff'd 171 Fed. Appx. 852 (D.C. Cir. 2005). Thus, 104(d)(1) Order No. 8265805 

alleges, in essence, a series of inadequate on-shift examinations in violation of the mandatory 

standard in section 75.362(b). 

In resolving the adequacy of the on-shift examinations, it is helpful to apply the 

Commission’s reasonably prudent person test. The Commission has previously articulated the 

test to determine whether there was a reasonable basis for believing that roof and ribs needed 

additional support. The Commission stated: 

[T]he adequacy of particular roof support or other control must 

be measured against the test of whether the support or control 

is what a reasonably prudent person, familiar with the mining 

industry and the protective purposes of the standard, would have 

provided in order to meet the protection intended by the standard. 

36 FMSHRC Page 1070
Canon Coal Co., 9 FMSHRC 667, 668, (Apr. 1987) (emphasis added). See also, Ideal Cement 

Co., 12 FMSHRC 2409, 2416 (Nov. 1990). 

 Obviously, Inspector Wise, who (unlike the issuing inspectors) was familiar with the 

conditions in the No. 7 Mine, satisfies the Commission’s criteria of a reasonably prudent person 

who understands the protective purposes of the roof control provisions in section 75.202(a). 

Yet, Inspector Wise did not find any unreported conditions requiring remedial roof or rib control 

during his relevant inspections of the ribs along the No. 1, 2 and 3 Belts. 

Moreover, there is no evidence that the on-shift examinations were conducted in a 

perfunctory manner. Significantly, the on-shift examination book entries proffered into evidence 

by the Secretary reflect that there were rib conditions requiring remedial action which had been 

noted by the on-shift examiner during the week preceding the February 1, 2012, inspection. 

Specifically, MCC examiner Derrick Wright noted on January 23, 2012, that timbers were added 

at breaks 61 and 58 along Belt No. 1; he noted on January 25, 2012, that roof bolt plates were 

secured at break 6 along Belt No. 3; and he noted on January 30, 2012, that timbers were added 

at breaks 3 and 4 along Belt No. 3. (Gov. Ex. M at 1, 3, 6). Although Inspector Wise and the 

on-shift examiners may have missed a relatively small proportion of the one inch cracks cited by 

Preece and Adams, the dispositive question is whether the on-shift examinations were adequate 

based on a reasonably prudent examiner test. 

Finally, although 104(d)(1) Order No. 8265805 references violative conditions in 

addition to the subject rib conditions in this matter, the Secretary failed to present any evidence 

of these conditions as the basis for demonstrating the on-shift examinations were inadequate. 

In fact, Preece admitted that the “fifty locations” where Preece and Adams cited rib cracks 

were the primary basis for issuing Order No. 8265805. (Tr. 148). Thus, on balance, Order 

No. 8265805 must be vacated as the Secretary has failed to satisfy his burden of demonstrating 

that the examinations were inadequate. 

 As a final note, this Commission protects miners from adverse actions taken by mine 

operators in response to a miner’s protected activities. Protected activity includes testimony in 

Mine Act proceedings. Federal whistleblower statutes hold the government to the same 

standard. See 5 U.S.C. § 2302(f)(2) (2013). This litigation has caused MSHA inspectors to 

provide conflicting testimony with regard to their inspection findings. Consequently, Inspector 

Wise was required to testify under difficult circumstances. While I recognize retaliation may be 

extremely unlikely, it would be naïve to believe it never occurs. The Secretary should ensure 

that Wise does not experience any reprisals as a result of his participation in these proceedings. 

36 FMSHRC Page 1071
ORDER

 Consistent with this Decision, IT IS ORDERED that 104(d)(1) Citation No. 8265796 

and 104(d)(1) Order Nos. 8265798 and 8265804 in Docket No. KENT 2012-1321 

ARE MODIFIED to 104(a) citations to reflect that the cited conditions were not the result 

of an unwarrantable failure. IT IS FURTHER ORDERED that the degree of negligence 

attributable to Martin County Coal Corporation for each of cited violations in these citations 

is reduced from high to moderate. Accordingly, IT IS ORDERED that a civil penalty of 

$4,000.00 each shall be assessed for Citation Nos. 8265796, 8265798 and 8265804, constituting 

a total civil penalty of $12,000.00. 

IT IS FURTHER ORDERED that 104(d)(1) Order No. 8265805 in Docket No. 

KENT 2012-1403 IS VACATED. 

IT IS FURTHER ORDERED, consistent with the parties’ partial settlement agreement, 

that Martin County Coal Corporation shall pay a total civil penalty of $4,850.00, consisting of 

$850.00 for 104(a) Citation No. 8251922 in Docket No. KENT 2012-1321, and $4,000.00 for 

104(a) Citation No. 8265806 in Docket No. KENT 2012-1403. 

Accordingly, IT IS ORDERED that Martin County Coal Corporation pay, within 40 

days of the date of this decision, a total civil penalty of $16,850.00 in satisfaction of the citations 

in the captioned dockets, consisting of a civil penalty of $12,850.00 for Docket No. KENT 2012-

1321, and $4,000.00 for Docket No. KENT 2012-1403. 

Upon receipt of timely payment, the captioned contest and civil penalty proceedings 

ARE DISMISSED. 

 /s/ Jerold Feldman 

 Jerold Feldman 

 Administrative Law Judge 

Distribution: 

Matt S. Shepherd, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

Jeffrey Phillips, Steptoe & Johnson PLLC, 2525 Harrodsburg Road, Suite 300, Lexington, KY 

40504 

 

/tmw 

36 FMSHRC Page 1072
ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges 

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

Washington, D.C. 20004 

Telephone: 202-434-9958 

April 3, 2014 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner 

 v. 

WEBSTER COUNTY COAL, LLC, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

 CIVIL PENALTY PROCEEDING 

 Docket No. KENT 2013-510 

 A.C. No. 15-02132-311939 

 Dotiki Mine 

ORDER DENYING RESPONDENT'S MOTION FOR PARTIAL SUMMARY DECISION

Before: Judge Rae 

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

Secretary pursuant to Section l05(d) of the Federal Mine Safety and Health Act of 1977, as 

amended, 30 U.S.C. § 815(d) (the "Mine Act"). 

Webster County Coal, LLC, ("Respondent" or "WCC") was cited by Mine Safety and 

Health ("MSHA") inspector Sparks on November 13,2012 for several alleged violations, three of 

which Respondent seeks to have summarily dismissed as a matter of law. The three subject 

citations allege a violation of mandatory standard 30 C.F.R. §75.1714-7(a) which provides, "[a] 

mine operator shall provide an MSHA-approved, handheld, multi-gas detector that can measure 

methane, oxygen, and carbon monoxide to each group of underground miners and to each person 

who works alone, such as pumpers, examiners, and outby miners." 

The citations were issued by Sparks when he observed miners working alone in three 

different areas of the mine with their multi-gas detectors switched off. The citations note that the 

operator was cited with this standard several times in the preceding two years. It is the 

Secretary's position that the operator knew or should have known that the miners were engaging 

inthis pattern of behavior of turning off the gas detectors and should have done more to ensure 

they were being used properly. Respondent asserts that the operator need only "provide" or 

furnish the miners with the detectors within the plain meaning of the standard. For the reasons 

set forth below, I concur with the Secretary's interpretation of the standard and further find 

additional facts relating to the operator's conduct are necessary to determine whether the 

violations have occurred. I therefore DENY the Respondent's motion for summary decision. 

36 FMSHRC Page 1073
Summary Decision Standards:

Commission Rule 67 sets forth the guidelines for granting summary decision (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 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,' and has analogized it to Rule 56 of the Federal Rules of Civil Procedure, under which 

the Supreme Court has indicated that summary judgment is authorized only 'upon proper 

showings of the lack of a genuine, triable issue of material fact."' Hanson Aggregates New York, 

Inc., 29 FMSHRC 4, 9 (Jan. 2007) (quoting Energy West Mining Co., 16 FMSHRC 1414, 1419 

(July 1994)). In reviewing the record on summary judgment, the court must evaluate the 

evidence in "the light most favorable to...the party opposing the motion." Hanson Aggregates at 

9 (quoting Poller v. Columbia Broad. Sys., 368 U.S. 464,473 (1962). Any inferences "drawn 

from the underlying facts contained in [the] materials [supporting the motion] must be viewed in 

the light most favorable to the party opposing the motions."' Hanson Aggregates at 9 (quoting 

Unites States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). 

There is a paucity of case authority discussing the meaning of the term "provide" as it 

relates to the cited standard. In an effort to give meaning to the term, Respondent asserts that the 

Commission has relied upon the plain meaning of a term when not defined by statute or 

regulation. (Citations omitted.) The plain meaning of "provided", then, can be determined by 

Merriam-Webster's Dictionary which defines it as "to supply what is needed, to supply for use,to 

take measures beforehand." WCC asserts that because it gave each miner the detector that 

functioned properly when tested, it has complied with the regulation. An analogy is made by 

WCC to the language in mandatory standard 30 C.F.R. §77.1710(g) which states an employee 

"shall be required to wear" safety belts and harnesses when there is a danger of falling. It cites 

several cases for the proposition that the Commission has interpreted the language in that 

standard to mean an operator need do nothing more than have fall protection available for the 

miners' use. The Respondent has misread these cases. In Southwestern Illinois Coal Corp., the 

operator had given all miners its safety program booklet, provided a seminar in the use of fall 

protection and had a disciplinary program in effect for violations of mandatory rules and 

regulations. The Commission held that it had still violated the standard when a miner was found 

working at elevation without fall protection. This was because the operator failed to show 

specific and diligent on-site enforcement action. The Commission stated "when an operator 

requires its employees to wear belts when needed, and enforces that requirement, it has 

discharged its obligation under the regulation." Southwestern Illinois Coal Corp, 5 FMSRHC 

1675. (Emphasis added.) None of the remaining cases cited by Respondent holds otherwise. 

At heart in determining the proper meaning of terms such as "shall be required to wear" 

or in this instance "shall be provided" is the overall protective purpose of the Mine Act and the 

specific standard at issue. See The American Coal Co., 29 FMSHRC 941 (Dec. 2007) (An 

36 FMSHRC Page 1074
escapeway that was not easily accessed from other working areas of the mine was not "provided" 

within the meaning of the standard.). If the operator were required to do nothing more than hand 

each miner a multi-gas detector on his first day of employment at the mine, this standard would 

be a hollow one. The standard is designed to protect miners against being overcome by 

dangerous gases while working alone and unable to call for help. Miners do not always do what 

is most prudent when left to their own devices. It is, therefore, the operator's responsibility under 

the Act and its mandatory standards to provide them with adequate protection from safety and 

health hazards. It discharges this duty by employing specific and diligent on-site supervision and 

enforcement action. Whether this obligation was properly undertaken by WCC cannot be 

determined at this juncture, making summary decision unavailable here. It is a question of fact 

reserved for a hearing on the merits.1

The Respondent's motion for summary decision is DENIED. 

 /s/ Priscilla M. Rae 

Priscilla M. Rae 

Administrative Law Judge 

 

Distribution: 

Gary D. McCollum, Esq., Assistant General Counsel, Webster County Coal, LLC, 771 Corporate 

Drive, Ste 500, Lexington, KY 40503 

Donna E. Sonner, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Ste. 230, Nashville, TN 37219-2440 

 1

 A hearing on this matter has been previously scheduled to commence on April 16, 2014 

in Henderson, KY. 

36 FMSHRC Page 1075
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

Office of Administrative Law Judges 

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

Washington, D.C. 20004 

April 4, 2014 

 

ORDER DENYING RESPONDENT’S MOTION TO COMPEL

 

 This discrimination proceeding is before me under section 105(c)(2) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2). On August 29, 2013, the Federal Mine 

Safety and Health Review Commission (“Commission”) received a complaint of discrimination 

filed by the Secretary of Labor (“Secretary”) on behalf of the complaining miner, Jose Villa. 

The Commission received an answer from Molycorp Minerals, LLC (“Respondent” or 

“Molycorp”), on September 27, 2013. Thereafter, Chief Administrative Law Judge Robert J. 

Lesnick assigned this case to me on November 7, 2013. This case is currently set for hearing on 

June 18–20, 2014, in or near San Bernardino, California. 

On January 21, 2014, Molycorp filed a Motion to Compel, and the Secretary filed his 

Opposition to Respondent’s Motion to Compel on January 31, 2014. In a March 6, 2014, 

conference call with my Law Clerk, Paul Veneziano, the parties confirmed that they had not yet 

resolved the issues underlying the pending motion. On March 10, 2014, counsel for Molycorp 

sent an e-mail attaching a chart entitled “Additional Information from Secretary Concerning 

Document Production.” On March 14, 2014, I permitted the Secretary to file a surreply to 

Molycorp’s March 10, 2014, e-mail. The Secretary filed his surreply on March 21, 2014. 

I. FACTUAL BACKGROUND AND ISSUES TO BE DECIDED 

 On October 1, 2013, Molycorp requested the production of documents, requested 

admissions, and submitted interrogatories. (Mot. at Ex. 1.) The Secretary provided responses to 

Molycorp’s discovery requests on November 15, 2013, along with privilege log consisting of a 

table of withheld documents and a table of redacted documents. (Mot. at Ex. 2, Ex. 3.) On 

November 26, 2013, the Secretary provided additional redacted documents. (Mot. at 2.) 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), on behalf 

 of JOSE VILLA 

 Complainant, 

 v. 

MOLYCORP MINERALS, LLC, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

 DISCRIMINATION PROCEEDING 

Docket No. WEST 2013-1097-DM 

WE MD 13-16 

Mine ID 04-02542 

Mt. Pass Mine and Mill 

36 FMSHRC Page 1076
Based on the Secretary’s discovery responses and privilege log, Molycorp identified nine 

documents it believes should have been produced in their entirety, excluding the informants’ 

names. (Mot. at 2, 4; Opp. at 5.) The Secretary has provided redacted copies of eight documents 

and withheld the ninth. (Opp. at 5.) Those documents include: 

Redacted Documents: 

1. May 8, 2013 – Memorandum of Interview (Informant) conducted by MSHA

2. May 18, 2013 – Memorandum of Interview (Informant) conducted by MSHA

3. May 22, 2013 – Memorandum of Interview (Informant) conducted by MSHA

4. April 12, 2013 – Unsigned Statement from Informant

5. May 5, 2013 – Unsigned Statement from Informant

6. May 6, 2013 – Signed Statement from Villa

7. April 22, 2013 – Signed Statement from Villa

8. May 22, 2013 – Memorandum of Interview (Villa) conducted by MSHA

Withheld Document: 

9. May 28, 2013 – Memorandum to File 

Respondent’s motion contends that the Secretary has not properly asserted privileges that 

justify his redactions and withholding of documents. (Mot. at 12–16, 18–19.) Molycorp also 

suggests that if the informant’s privilege applies, the Secretary should produce the redacted and 

withheld materials because Respondent’s need for the information outweighs the Secretary’s 

need to maintain the privilege to protect the public interest. (Mot. at 6, 16–18.) Respondent asks 

that I order the Secretary “to produce the disputed documents in a complete and unredacted form 

with the exception of individual names of informants.” (Mot. at 4.) 

The Secretary asserts the work product privilege as a basis for redacting or withholding 

the first five above-listed documents, a portion of the eighth document, and the entire ninth 

document. (Opp. at 17–19.) The Secretary also claims that the informant’s privilege applies to 

all of the redacted documents. (Id. at 7.) Finally, the Secretary argues that Molycorp has not 

shown that its need for the redacted documents outweighs the Secretary’s interest in maintaining 

the privilege.1

 (Id. at 14–15.) 

 The following issues are before me: (1) whether the work product privilege applies to the 

seven documents for which the Secretary asserts the privilege; (2) whether the informant’s 

privilege applies to the redacted documents; (3) whether the redacted material would tend to 

reveal the informants’ identity; and (4) whether Molycorp’s need for the redacted information 

outweighs the Secretary’s interest in maintaining the privilege. 

 1

 The Secretary also argues that Respondent has not made the showing of substantial need 

and undue hardship necessary to overcome the work product privilege. (Opp. at 19–20.) Yet, 

Molycorp claims only that the Secretary has not properly asserted the work product privilege. 

(Mot. at 18–19.) Thus, I need not determine whether Respondent demonstrated a substantial 

need and undue hardship. 

36 FMSHRC Page 1077
II. PRINCIPLES OF LAW

A. Work Product Privilege 

Although the Commission’s Procedural Rules do not specifically enumerate a work 

product privilege, 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 

26(b)(3) allows parties to withhold otherwise discoverable materials under the work product 

privilege if they are (1) documents or tangible things; (2) prepared in anticipation of litigation or 

for trial; and (3) by or for another party or for that party’s representative. Fed. R. Civ. P. 

26(b)(3); see also ASARCO, Inc., 12 FMSHRC 2548, 2558 (Dec. 1990) (“ASARCO I”). 

Courts apply a “but-for” test to determine whether a substantially similar document 

would have been created if not for the prospect of particular litigation. See ASARCO I, 12 

FMSRC at 2558 (“If . . . [a] document can fairly be said to have been prepared because of the 

prospect of litigation, then the document is covered by the privilege. . . . In addition, particular

litigation must be contemplated at the time the document is prepared.”) (emphasis added); see 

also U.S. v. Richey, 632 F.3d 559, 568 (9th Cir. 2011); U.S. v. Deloitte LLP, 610 F.3d 129, 137 

(D.C. Cir. 2010). The Commission and its Judges have determined that documents prepared as a 

result of a MSHA investigation are prepared in anticipation of litigation. Consolidation Coal 

Co., 19 FMSHRC 1239, 1243 (July 1997) (indicating that a special investigator’s memoranda 

were prepared in anticipation of litigation); ASARCO I, 12 FMSHRC at 2558 (concluding that a 

special investigator’s notes were prepared in anticipation of litigation because “[a] major 

function of an MSHA special investigation is to determine whether litigation should be 

commenced . . . .”); see also Baylor Mining, Inc., 26 FMSHRC 739, 742 (Aug. 2004) (ALJ) 

(finding investigator’s documents, signed and unsigned miner witness statements, and 

memoranda of interviews to have been prepared in anticipation of litigation); Sec’y of Labor on 

behalf of Jenkins v. Durbin Coal, 22 FMSHRC 1135, 1137–39 (Sept. 2000) (ALJ) (determining 

that witness statements, memoranda, notes, and reports had been prepared in anticipation of 

litigation when collected as part of a section 105(c) investigation of a discrimination complaint). 

 

B. Informant’s Privilege 

Under the informant’s privilege, the Secretary may “withhold from disclosure the identity 

of persons furnishing information of violations of law to [MSHA].” Bright Coal Co., 6 

FMSHRC 2520, 2522 (Nov. 1984); see also 29 C.F.R. § 2700.61 (prohibiting Commission 

Judges from disclosing or ordering disclosure of an informant’s name to an operator “except in 

extraordinary circumstances.”) Informants are people who have “furnished information to a 

government official relating to or assisting in the government’s investigation of a possible 

violation of law, including a possible violation of the Mine Act.” Id. at 2525. The informant’s 

privilege protects from disclosure material that “tend[s] to reveal an informant’s identity.” 

ASARCO, Inc., 14 FMSHRC 1323, 1330 (Aug. 1992) (“ASARCO II”). The Secretary must 

demonstrate why disclosure would tend to reveal the miner’s identity, but his burden “is not 

necessarily high” and may be satisfied by an affidavit “setting forth how or why disclosure . . . 

would tend to reveal the identity of an informant.” Id. at 1329–30. 

36 FMSHRC Page 1078
 A requesting party may overcome the informant’s privilege if, in the totality of the 

circumstances, the information is “essential to fair determination.” Bright Coal, 6 FMSHRC at 

2526. To do so, the requesting party must demonstrate that its need for the information 

outweighs the Secretary’s need to maintain the privilege to protect the public interest. Id. 

III. ANALYSIS AND CONCLUSIONS OF LAW

A. Work Product Privilege 

The Secretary asserts the work product privilege as to seven different documents, 

including: three memoranda of interviews with miner informants dated May 8, May 18, and 

May 22, 2013; two unsigned statements from informants dated April 12 and May 5, 2013; the 

withheld May 28, 2013, memorandum prepared by MSHA; and a portion of the memorandum of 

interview with Villa that the Secretary claims contains only the “investigations, impressions, 

strategy, and methods for obtaining information.” (Opp. at 17–19.) Respondent contends that 

the Secretary has not properly asserted the work product privilege. (Mot. at 19.) However, 

Molycorp states only that “the information provided is inadequate to properly assert [the work 

product privilege] and “[l]ittle to none of the required information has been provided.”2

 (Id.) 

Looking at the redacted documents (Opp. at Ex. 1), I determine that each redacted item is a 

document that was prepared by or for the Secretary’s representative. Likewise, the Secretary’s 

privilege log and motion make clear that the withheld memorandum is a document MSHA 

prepared on May 28, 2013. Accordingly, the only question remaining is whether the redacted 

and withheld documents were prepared in anticipation of litigation. 

 Six of the documents—the May 8, May 18, and May 22 memoranda of interviews with 

informants, portions of the May 22 memorandum of interview with Villa, the May 5 unsigned 

statement, and the withheld May 28 memorandum—were created after Villa filed his formal 

105(c) complaint with MSHA on April 29, 2013. MSHA routinely undertakes section 105(c) 

investigations to determine whether the Secretary should bring a discrimination case on behalf of 

the complaining miner. Thus, “but for” Villa’s complaint and MSHA’s section 105(c) 

investigation, none of these documents would have been created. Accordingly, I conclude that 

these six items were prepared in anticipation of litigation and constitute the Secretary’s work 

product. 

 However, the April 12, 2013, unsigned statement significantly predates Villa’s complaint. 

The Secretary has not adequately explained how the author prepared this statement in 

anticipation of litigation except to say “the underlying issues surrounding Villa’s discrimination 

complaint were already coming to a head.” (Opp. at 18–19.) None of the cases the Secretary 

cites involve materials prepared before a discrimination complaint has been filed. Although an 

 2

 Molycorp points to Greyeagle Coal Co., 35 FMSHRC 3321, 3325, 3330 (Oct. 2013) 

(ALJ), for the proposition that boilerplate objections are insufficient to properly assert a 

privilege. (Mot. at 18.) I do not find this case analogous. In Greyeagle Coal, the objecting party 

provided no privilege log to go along with its written assertion of privilege. 35 FMSHRC at 

3330. Here, the Secretary has identified the nine documents he has either withheld or redacted. 

(See Mot. at Ex. 2, Ex. 3.) 

36 FMSHRC Page 1079
investigation may have already begun, I cannot conclude that this statement was prepared in 

anticipation of litigation based on the information the Secretary has provided. 

B. Informant’s Privilege 

1. Whether the Informant’s Privilege Applies

In this case, the Secretary has asserted the informant’s privilege as to the eight redacted 

documents he provided. (Opp. at 6–7.) Given my conclusion that the work product privilege 

applies to five of the redacted documents, see discussion supra Part III.A, I need not revisit them 

to decide if the informant’s privilege applies. I must only determine whether the informant’s 

privilege applies to the April 6, 2013, unsigned statement and Villa’s signed statements dated 

April 22 and May 6, 2013. 

Molycorp contends that the Secretary has not provided sufficient information to show the 

informant’s privilege applies to these documents.3

 (Mot. at 14–15.) In response, the Secretary 

represents that the informants in this case “furnished information” in connection with “a possible 

violation of the Mine Act.” (Opp. at 7 (quoting Bright Coal, 6 FMSHRC at 2525).) He also 

avers that the miners in this case “spoke to the Secretary in confidence, currently work for 

Respondent, [and] seek to remain confidential” and states that “one has expressed particular 

concern about becoming the target of Respondent’s retribution.”4 (Opp. at 3). 

Looking at the unredacted portions of these three documents, each includes details 

regarding the incidents in question and miners present. These facts support a finding that 

unnamed witnesses possessed information to share with MSHA. Moreover, the Secretary’s 

counsel has affirmed in his Opposition that the redacted portions involve details from (or 

regarding) miners that provided materials to MSHA during the section 105(c) investigation. In 

view of counsel’s responsibilities under Commission Procedural Rule 6 and Federal Rule of 

 3

 Pointing to U.S. Department of Justice v. Landano, 508 U.S. 165 (1993), Respondent 

contends that the Secretary must demonstrate the informant in question provided information 

with “some expectation of confidentiality.” (Mot. at 8.) Yet, it is unclear why Molycorp 

believes Landano is applicable. Landano examined Exemption 7(D) of the Freedom of 

Information Act (FOIA). 508 U.S. at 171. Although the informant’s privilege and Exemption 

7(D) each allow the government to withhold information derived from confidential sources, it is 

not clear that they are coterminous in scope. The FOIA is a broadly applicable statute meant to 

facilitate public access to government records rather than an evidentiary privilege between 

parties in litigation. Moreover, Respondent overreads Landano. Based on the volume and 

variety of the FBI’s information sources, the Court refused to infer that all FBI investigative 

sources were confidential but noted that an implied assurance of confidentiality could be inferred 

from the character of the crime being investigated. Id. at 175–76, 179–80. Here, the potential 

for retaliation makes an inference of confidentiality appropriate. 

4

 The Secretary also indicates his willingness to “submit an affidavit in camera review” if 

I require “additional information regarding the application of the informant’s privilege to the 

materials. (Opp. at 3 n.1.) 

36 FMSHRC Page 1080
Civil Procedure 11, I also determine that an affidavit will not be necessary in this case because a 

sworn statement of the same will add nothing to my analysis. See 29 C.F.R § 2700.6(b) (a 

person’s signature on a document certifies, to the best of the person’s knowledge, information, 

and belief, that the document is well grounded in fact); Fed. R. Civ. P. 11(b)(3) (an attorney 

signing a pleading is certifying, to the best of the attorney’s knowledge, information, and belief, 

that factual contentions have evidentiary support). 

Based on the foregoing analysis, I conclude that the informant’s privilege applies to each 

of these three redacted documents. 

2. Whether the Redacted Information Would Tend to Reveal the Identity of the 

Informants

Having determined that the informant’s privilege applies to these three documents, I must 

also decide whether the redacted information would tend to reveal the informant’s identity. 

First, Villa’s statement from April 22, 2013, indicates that he and another miner 

expressed safety concerns. (Opp. at Ex. 1.) The Secretary represents that the only information 

that has been redacted are the “names and phone numbers of the miner witnesses.” (Id. at 9.) 

Looking at the redacted version of the statement, it appears contact information was redacted 

from the list of people with knowledge of the incident. (Id. at Ex. 1.) Undoubtedly, contact 

information would reveal the informant’s identity. Thus, I determine that the Secretary has 

properly redacted such information. 

Second, the only information redacted from Villa’s May 6, 2013, statement are his 

answers when asked whether he knew of any other miners who had been disciplined for making 

safety complaints, the reason for those safety complaints, and the date of the complaints. (Id. 

at Ex. 1.) Such details would reasonably allow Molycorp to identify the names of possible 

informants. I therefore determine that the Secretary has properly redacted that information. 

 Third, the Secretary has redacted only small portions of the April 12, 2013, unsigned 

statement, which relays an account of the “buggy” transportation argument involving Villa. (Id.

at Ex. 1.) The Secretary avers that only the informant’s name, phone number, and three 

sentences of context have been removed. (Id. at 9.) According to the Secretary, those sentences 

reference where the informant was sitting on the small bus. (Id.) Molycorp claims the 

Secretary’s reliance on the “universe of persons with” being “small” is insufficient to support the 

privilege. (Mot. at 15 (citing ASARCO II, 14 FMSHRC at 1329).) 

However, in ASARCO II the Commission held only that the Judge had not committed a 

“‘clear abuse of discretion’” in ordering disclosure where the Secretary had relied on the “limited 

universe of employees” but presented no “facts to the judge to establish her claim.” 

14 FMSHRC at 1329–30 (citations omitted). Here, looking at the redacted statement itself, the 

informant provides some context about his identity in his references to “up front,” “our crew,” 

“our foreman,” and “our union.” (Id. at Ex. 1.) Based on this review, I determine that any 

further context would allow Molycorp to use the redacted information to deduce the identity of 

the informant involved. Thus, I conclude that the Secretary’s redactions here are proper. 

36 FMSHRC Page 1081
3. Whether Respondent Has Demonstrated a Need for the Redacted Documents That 

Outweighs the Secretary’s Interest in Maintaining the Privilege

Molycorp argues its defenses rest “on fact-specific determinations concerning both the 

alleged discriminatory conduct and the related events pertaining to Respondent’s affirmative 

defenses.” (Mot. at 17.) Respondent claims that contemporaneous witness observations “are 

vital to assessing the accuracy and validity of the claims on both sides of the case,” and contends 

that the proximity in time to the incidents suggests that the redacted information is unavailable 

from any other source. (Id. at 17–18.) Finally, Molycorp suggests that passage of time will have 

degraded the memories of the informant witnesses. (Id. at 18.) 

For his part, the Secretary argues that Molycorp has not met its burden of demonstrating 

the documents to be essential to a fair determination of the matter. (Opp. at 14.) Specifically, 

the Secretary states that Respondent has access to substantially the same information. (Id. at 15.) 

The Secretary also notes that Molycorp’s discovery responses suggest “it has spoken to multiple 

employees about the same incidents, and may or may not have spoken to the informants 

already.” (Id. at 15.) In addition, I note the Secretary’s representation that “the need for 

protection as informants is critical, as the miner informants still work for Respondent.” (Id. at 8.) 

Molycorp has not met its burden in this case for two reasons. First, Respondent’s 

argument that the redacted information may be “vital” to its case is counterbalanced by the high 

stakes involved for these particular informants. See Bright Coal, 6 FMSHRC at 2524 (“The 

presence of an employment relationship . . . with the greater opportunity for retaliation that it 

provides, is a relevant factor to be considered in conducting the balancing test . . . for 

determining whether the privilege must yield in a particular case.”) The precarious position of 

informants is a weighty concern, and the informant’s privilege provides a critical protection 

against possible retaliation. 

Second, Molycorp has not demonstrated that the passage of time limits its access to the 

redacted information. Respondent notably makes no mention of its own investigation—evidence 

which might have shown informational discrepancies with the redacted documents. 

Nevertheless, a full year has not yet passed since the incident in question. Molycorp has failed to 

show that witness recollections will have been so degraded that it will not have access to the 

same information. Cf. ASARCO II, 14 FMSHRC at 1323, 1331 (relying on operator’s ability to 

conduct depositions more than four years after an accident as a rationale for concluding the 

operator had access to the same information). 

Based on the factors before me in this case, I determine that Molycorp has not 

demonstrated the redacted information is essential to a fair determination of the claims. Thus, I 

conclude that Respondent has not overcome the informant’s privilege. 

36 FMSHRC Page 1082
IV. ORDER DENYING MOTION

 In view of the above, the Secretary has properly asserted the work product or informant’s 

privilege as to each of the nine documents at issue, and Respondent has not met its burden of 

overcoming those privileges. Accordingly, it is hereby ORDERED that Molycorp’s Motion to 

Compel is DENIED. 

 /s/ Alan G. Paez 

 Alan G. Paez 

 Administrative Law Judge 

Distribution (Via Electronic Mail & U.S. Mail): 

Natalie Nardecchia, Esq., U.S. Department of Labor, Office of the Solicitor, 350 S. Figueroa 

Street, Suite 370, Los Angeles, CA 90071 

(nardecchia.natalie@dol.gov) 

Laura E. Beverage, Esq., Jackson Kelly PLLC, 1099 Eighteenth Street, Suite 2150, Denver, CO 

80202 (lbeverage@jacksonkelly.com) 

Dana M. Svendsen, Esq., Jackson Kelly PLLC, 1099 Eighteenth Street, Suite 2150, Denver, CO 

80202 (dmsvendsen@jacksonkelly.com) 

/pjv 

36 FMSHRC Page 1083
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: 412-920-8689 

April 7, 2014 

RICHARD M. ROBINSON and ROBERT 

DALE HABERLOCK, 

 Complainants, 

 v. 

VULCAN CONSTRUCTION 

MATERIALS, LP, 

 Respondent 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) O/B/O 

RICHARD M. ROBINSON, 

 Complainant, 

 v. 

VULCAN CONSTRUCTION 

MATERIALS, LP, 

 Respondent, 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) O/B/O 

ROBERT DALE HABERLOCK, 

 Complainant, 

 v. 

VULCAN CONSTRUCTION 

MATERIALS, LP, 

 Respondent, 

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 DISCRIMINATION PROCEEDING 

Docket No. KENT 2013-693-DM 

MSHA Case No. SE MD 12-19 

Mine: Grand Rivers Quarry 

Mine ID: 15-00087 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. KENT 2013-742-DM 

MSHA Case No. SE MD 13-19 

Mine: Grand Rivers Quarry 

Mine ID: 15-00087 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2013-836-DM 

MSHA Case No. SE MD 13-10 

Mine: Grand Rivers Quarry 

Mine ID: 15-00087 

36 FMSHRC Page 1084
SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) O/B/O 

RICHARD M. ROBINSON, 

 Complainant, 

 v. 

VULCAN CONSTRUCTION 

MATERIALS, LP, 

 Respondent, 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) O/B/O 

RICHARD M. ROBINSON and ROBERT 

DALE HABERLOCK, 

 Complainant, 

 v. 

VULCAN CONSTRUCTION 

MATERIALS, LP, 

 Respondent, 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) O/B/O 

RICHARD M. ROBINSON, 

 Complainant, 

 v. 

VULCAN CONSTRUCTION 

MATERIALS, LP, 

 Respondent, 

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DISCRIMINATION PROCEEDING 

Docket No. KENT 2013-917-DM 

MSHA Case No. SE MD 13-09 

Mine: Grand Rivers Quarry 

Mine ID: 15-00087 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2013-977-DM 

MSHA Case Nos. SE MD 13-18 

 SE MD 13-19 

Mine: Grand Rivers Quarry 

Mine ID: 15-00087 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2013-987-DM 

MSHA Case No. SE MD 12-17 

Mine: Grand Rivers Quarry 

Mine ID: 15-00087 

36 FMSHRC Page 1085
ORDER DENYING VULCAN’S MOTION TO DISMISS

 This matter is before me on Respondent’s September 16, 2013 Motion to Dismiss the 

Discrimination Proceeding docketed as KENT 2013-977-DM. This case involves two miners, 

Richard M. Robinson and Robert Dale Haberlock, and six dockets, and a fairly unique set of 

procedural facts. The dockets are as follows: 

1. KENT 2013-693-DM (§105(c)(3) Discrimination Proceeding)

a. Deals with SE-MD-12-19. 

b. Includes both Robinson & Haberlock regarding Respondent’s alleged attempts to 

get them removed as Miners’ Representatives. The Secretary is not a party to this 

case. 

c. Originally dropped by Robinson & Haberlock based on conversation with 

Inspector Smith. After obtaining counsel, Robinson & Haberlock attempted to reopen the case, but the Secretary refused to do so. 

d. Respondent filed a Motion to Dismiss stating that the issue was dead when the 

Secretary refused to re-open. The motion was denied without prejudice and the 

case was stayed pending receipt of the related dockets. 

2. KENT 2013-742-DM (Temporary Reinstatement Proceeding) 

a. Deals with SE-MD-13-09 (same as KENT 2013-917-DM). 

b. Includes only Richard Robinson and filed on his behalf by MSHA. Proceedings 

relate to his lay-off following an MSHA inspection. 

c. The parties came to an agreement regarding economic re-instatement without 

going to hearing. 

d. The undersigned retains jurisdiction pending resolution of discrimination 

proceedings. 

3. KENT 2013-836-DM (§105(c)(2) Discrimination Proceeding) 

a. Deals with SE-MD-13-10. 

b. Includes only Dale Haberlock and filed on his behalf by MSHA. Proceedings 

relate to his lay-off after he allegedly reported safety hazards. 

c. No related temporary-reinstatement case. 

4. KENT 2013-917-DM (§105(c)(2) Discrimination Proceeding) 

a. Deals with SE-MD-13-09 (same as KENT 2013-742-DM). 

b. Includes only Richard Robinson and filed on his behalf by MSHA. Proceedings 

relate to his lay-off following an MSHA inspection and several alleged safety 

Complaints. 

c. Discrimination case directly related to earlier (and settled) temporary 

reinstatement. 

36 FMSHRC Page 1086
5. KENT 2013-977-DM (§105(c)(2) Discrimination Proceeding) 

a. Deals with SE-MD-13-18 and SE-MD-13-19. 

b. Includes both Robinson and Haberlock and filed on their behalf by MSHA. 

Proceedings deal with largely the same facts as KENT 2013-693-DM. 

Specifically, Respondents alleged attempts to remove Robinson and Haberlock as 

Miners’ Representatives. 

c. Currently a pending Motion to Dismiss filed by Respondent claiming that the 

filing was untimely and failed to allege a claim upon which relief could be 

granted. 

6. KENT 2013-987-DM (§105(c)(2) Discrimination Proceeding) 

a. Deals with SE-MD-13-17. 

b. Includes only Robinson and filed on his behalf by MSHA. Concerns 

Respondent’s alleged failure to contact Robinson so that he could accompany 

MSHA inspectors on safety inspections. 

I. Procedural and Factual Background: 

The relevant procedural and factual history of these dockets is as follows: 

 August 13, 2012 (on or about) - Richard Robinson and Dale Haberlock alleged that 

they were lawfully designated as “Representatives of Miners” at the Reed Quarry 

under the Mine Act (30 C.F.R. Part 40). 

o Robinson alleged that in his capacity as Miners’ Representative he 

reported hazardous conditions including running the plant without water to 

control dust, fly rock from belts, housekeeping, inoperative lights at the 

ready line, a truck overweight by 900 pounds, and worn out deck plates. 

 August 13-September 20, 2012 (dates unclear) - Robinson & Haberlock alleged that 

Respondent was opposed to their designation as Miners’ Representatives and began a 

course of conduct that interfered with their statutory right. These actions allegedly 

included: 

o Raising the idea with employees at the mine of removing Robinson and 

Haberlock as Miners’ Representatives. 

o Expressing hostility to having Robinson & Haberlock act as Miners’ 

Representatives and informing Vulcan employees ways in which they 

could have them removed. 

o Encouraging and/or allowing two hourly employees at the mine to 

circulate a petition seeking the removal of Robinson & Haberlock. 

Respondent allowed these workers to talk about and solicit signatures for 

the petition during “tailgate meetings” held by the company during work 

hours. 

36 FMSHRC Page 1087
o Denying Robinson & Haberlock permission to circulate a counter-petition 

to stay on as Miners’ Representatives. 

 September 20, 2012: KENT 2013-693-DM –Robinson & Haberlock filed the 

Department of Labor’s Discrimination Complaint form with MSHA for SE-MD-12-

19 based on the Respondent’s alleged conduct concerning their positions as Miners’ 

Representatives. 

 October 9, 2012: KENT 2013-693-DM (date unclear) –Robinson had a conversation 

with the MSHA investigator in this case in which the investigator allegedly indicated 

that Robinson did not suffer an “adverse action.” 

 October 9, 2012: KENT 2013-693—Robinson & Haberlock each executed a 

Discontinuation of Discrimination Complaint for Case No. SE-MD-12-19. 

 October 17, 2012: KENT 2013-693-DM – Robinson & Haberlock received a letter 

from MSHA approving the Discontinuation and indicating that their discrimination 

Complaint in SE-MD-12-19 was closed as “satisfied.” In that letter, MSHA 

acknowledged receipt of Robinson’s letter waiving his discrimination Complaint. 

 November 2012: KENT 2013-742 – MSHA received a Complaint about the mine 

and began an investigation. After they left, Maintenance Manager Scott Driver 

allegedly stated that whoever called MSHA was not a team player and Vulcan should 

get rid of them. Driver allegedly claimed that shutting down production for MSHA 

cost $23,000.00. 

 December 20, 2012: KENT 2013-836-DM – Haberlock was laid off. He was 

allegedly not given the opportunity to train in a new or previously performed job as 

other miners with less seniority were given. Haberlock’s counsel cited the following 

actions as reasons for “intimidation and harassment”: 

o Reporting hazardous berm, chocks covered in oil, dislodged pump line, 

and service truck overweight. 

o Traveling with MSHA inspectors. 

 December 22, 2012: KENT 2013-742-DM – Robinson was laid off. When he was 

laid off, Respondent recalled 3 employees with less seniority. 

 January 2, 2013: KENT 2013-987-DM – MSHA and Robinson created a procedure 

whereby Robinson would be informed about MSHA inspections so that he could 

follow the inspector as a Miners’ Representative. This process was used on January 

5, 8, and 9, 2013. 

 January 8, 2013: KENT 2013-836-DM and KENT 2013-917-DM – Robinson & 

Haberlock filed Complaints with MSHA (SE-MD-13-09 & SE-MD-13-10) alleging 

that their inclusion in a 51-employee layoff was retaliation against them because they 

were Miners’ Representatives. 

o KENT 2013-742-DM (related to KENT 2013-917-DM) – Robinson filed 

his discrimination claim alleging he was laid-off on December 20, 2012. 

The decision to lay-off Robinson allegedly occurred after a member of 

management stated that those who called MSHA were not team players 

36 FMSHRC Page 1088
and should no longer work at the mine. Robinson also alleged the 

decision was related to his position as Miners’ Representative. 

 January 9, 2013: KENT 2013-987-DM – At a close-out conference with mine 

management present, Robinson stated that he would not hesitate to call MSHA with 

any safety concerns. After he made that statement, the operator allegedly failed to 

notify Robinson of MSHA presence at the mine on March 14, March 27, April 2, and 

April 3, 2013. 

 February 15, 2013: Robinson received a letter regarding his claim of discriminatory 

lay-off from MSHA, which stated that the Secretary determined no discrimination 

occurred and that he had 30 days to file a discrimination Complaint on his own. 

 February 22, 2013: Haberlock received a letter regarding his claim of discriminatory 

lay-off from MSHA, which stated that the Secretary determined no discrimination 

occurred and that he had 30 days to file a discrimination Complaint on his own. 

 February 25, February 26, or March 6, 2013: Robinson was discharged. Other 

employees with less seniority were recalled during the same time period. Robinson 

alleged that the discharge dealt with his protected activity. 

 March 14, March 27, April 2, and April 3, 2013: KENT 2013-987-DM – 

Respondent allegedly failed to inform Robinson about MSHA’s presence at the mine, 

which effectively denied him an opportunity to accompany the inspectors during their 

inspection. 

 March 25, 2013: KENT 2013-693-DM –Robinson requested, through counsel, that 

SE-MD-12-19 be reopened by MSHA for a new investigation. Robinson argued that 

the investigator who told him to drop his claim was mistaken. 

 March 27, 2013: KENT 2013-693-DM – Carolyn T. James, Assistant Director, 

Technical Compliance and Investigation Office, sent an e-mail to Robinson’s counsel 

requesting more information on the alleged wrongdoing by the Inspector in SE-MD12-19. Robinson’s attorney responded the same day with the requested information. 

 April 6, 2013: The Secretary filed an Application for Temporary Reinstatement on 

behalf of Robinson with respect to SE-MD-13-09 and docketed as KENT 2013-724-

DM 

 April 17, 2013: Robinson filed a Complaint, Case No. SE-MD-13-17, alleging 

interference with the exercise of his rights as a Miners’ Representative. 

 April 23, 2013: KENT 2013-693-DM – Carolyn T. James sent a letter to Robinson’s 

counsel explaining that no evidence of wrongdoing on the part of the Inspector in SEMD-12-19 was present. However, she stated that the evidence from this case will be 

included in other Complaints by Robinson & Haberlock. 

 April 24, 2013: KENT 2013-693-DM - Robinson & Haberlock filed a Complaint of 

Discrimination through counsel for SE-MD-12-19. 

o The Complaint alleged that Vulcan engaged in discrimination in 

attempting to have Robinson & Haberlock removed from their positions as 

36 FMSHRC Page 1089
“Representative of Miners” at the quarry, including encouraging and/or 

allowing the circulation of a petition to remove them from that position. 

o Documentation showed that this Complaint was also filed with Carolyn 

James. 

 May 9, 2013: KENT 2013-742-DM – Robinson filed an application for Temporary 

Reinstatement under the Act. 

 May 14, 2013-May 20, 2013: KENT 2013-742-DM –Respondent filed an opposition 

to Robinson’s Application for Temporary Reinstatement. 

o Respondent alleged that the application was not proper as it was first 

rejected by the Secretary and then re-opened. It also argued that the claim 

was frivolous. 

 May 23, 2013: KENT 2013-693-DM – Respondent filed a Motion to Dismiss with 

respect to SE-MD-12-19. 

o Respondent argued that Robinson & Haberlock conflated a denial of a 

request to re-open an investigation with a determination by the Secretary 

that discrimination did not occur. It argued that as no determination had 

been made by the Secretary, the Section 105(c)(3) Complaint was 

premature. 

 May 29, 2013: KENT 2013-742-DM – The parties filed an Agreement regarding the 

economic reinstatement of Robinson for SE-MD-13-09. 

 June 5, 2013: KENT 2013-742-DM – Judge Andrews issued an Order Approving 

Economic Reinstatement Agreement for SE-MD-13-09. 

 June 10, 2013: KENT 2013-836-DM – The Secretary filed a Discrimination 

Complaint against Respondent in SE-MD-13-10 regarding Haberlock. 

o The Complaint alleges that Respondent discriminatorily laid of 

Haberlock for performing his duties as a Miners’ Representative. 

 June 14, 2013: KENT 2013-693-DM – Robinson & Haberlock filed an Opposition 

to the Motion to Dismiss with respect to SE-MD-12-19. 

o Robinson & Haberlock argued that MSHA’s denial of their request to reopen this matter constituted an action triggering their rights under 

105(C)(3). 

 June 19, 2013: KENT 2013-693-DM – Respondent filed a Reply to Robinson & 

Haberlock’s Opposition to the Motion to Dismiss. 

 June 22, 2013: KENT 2013-693-DM – An Order Denying Motion to Dismiss 

without prejudice pending the assignment of all related cases was issued. 

 July 3, 2013: KENT 2013-836-DM – Respondent filed an Answer to the Secretary’s 

Discrimination Complaint in KENT 2013-836-DM. 

o Respondent denied all of the substantive claims by Robinson & 

Haberlock. 

36 FMSHRC Page 1090
 July 10, 2013: KENT 2013-917-DM – Robinson filed a Discrimination Complaint 

under SE-MD-13-09 (meaning it was associated with KENT 2013-742-DM). 

o Robinson again alleged that, in his capacity as Miners’ Representative, he 

reported hazardous conditions including running the plant without water to 

control dust, fly rock from belts, housekeeping, inoperative lights on a 

loader, an overweight truck, worn out deck plates, broken guards on 

equipment, a broken handrail on a belt, and holes on the crusher deck. 

 July 31, 2013: KENT 2013-917-DM – Respondent filed an Answer to Respondent’s 

Complaint in SE-MD-13-09. 

o Respondent denied all of the substantive claims by Robinson & 

Haberlock. 

 August 6, 2013: KENT 2013-977-DM – The Secretary filed a Discrimination 

Complaint marked SE-MD-13-18 and SE-MD-13-19. The alleged discrimination 

included the following: 

o Raising the idea with employees at the mine that they remove Robinson & 

Haberlock as Miners’ Representatives. 

o Expressing hostility at having Robinson & Haberlock as Miners’ 

Representatives. 

o Informing employees of ways in which they may get Robinson & 

Haberlock removed as Miners’ Representatives. 

o Encouraging and/or allowing two hourly employees at the quarry to 

circulate a petition seeking the removal of Robinson & Haberlock as the 

Miners’ Representatives during work hours. 

o Allowing miners to talk about the petition and solicit signatures for the 

petition during company safety meeting during work hours. 

o Denying Robinson & Haberlock’s request to circulate a counter-petition in 

support of keeping them as Miners’ Representatives. 

o Attempting to intimidate Robinson by asking him to agree with the 

operator’s position in any potential disputes between the operator and 

MSHA. 

 August 12, 2013: KENT 2013-693-DM – Respondent filed an Answer to the 

Complaint in SE-MD-12-19. 

o Respondent denied all of the substantive claims by Robinson & 

Haberlock. 

 August 12, 2013: KENT 2013-987-DM – The Secretary filed a Discrimination 

Complaint on behalf of Robinson in SE-MD-12-17. 

o The Complaint alleged that Respondent failed to notify Robinson of 

MSHA inspections and effectively interfered with his ability to act in the 

capacity of Miners’ Representative. 

36 FMSHRC Page 1091
 September 3, 3013: KENT 2013-693-DM – Secretary filed a motion to Amend 

Complaint to reflect the civil penalty amount. 

 September 6, 2013: KENT 2013-917-DM - Secretary filed a motion to Amend 

Complaint to reflect the civil penalty amount. 

 September 6, 2013: KENT 2013-977-DM – Respondent filed a motion to Dismiss 

with respect to SE MD-13-18 and SE-MD-13-19. 

o Respondent claimed that the Secretary’s Complaint was untimely and 

failed to state a claim upon which relief could be granted. 

 September 9, 2013: KENT 2013-987-DM – Respondent filed an answer to the 

Complaint in SE-MD-12-17. 

o Respondent denied all of the substantive claims by Robinson & 

Haberlock. 

 November 18, 2013: KENT 2013-977-DM – Secretary filed a Response to 

Respondent’s Motion to Dismiss. 

 November 20, 2013: KENT 2013-977-DM – Robinson & Haberlock filed Response 

to Respondent’s Motion to Dismiss. 

 November 25, 2013: KENT 2013-977-DM – Secretary filed Amended Response to 

Respondent’s Motion to Dismiss. 

II. Contentions of the Parties: 

The Respondent argues that Robinson and Haberlock’s Discrimination Complaints 

should be dismissed as untimely. Resp. Mot. To Dismiss, 3-6. The Respondent asserts that the 

Complainants’ April 2013 filings for events that occurred between August-September 2012 

exceeded the 60-day statutory time limit. Id. at 5. While conceding that the statutory timeframes 

are not jurisdictional, the Respondent argues that the Complainants delays were unexcused, and 

should be dismissed. Id. at 3-6. The Respondent further argues that cases SE-MD-13-18 and SEMD-13-19 should be dismissed on the grounds that allowing §105(c)(2) and §105(c)(3) cases 

that are based on the same sets of facts to proceed would cause “prejudice, confusion, and a 

waste of judicial resources.” Id. at 7. 

 The Secretary responded that the Complainants were misled, and therefore their delay 

was justifiable. Sec. Resp. to Resp.’s Mot. to Dismiss, 6. Furthermore, the Secretary argues that 

Respondent suffered no actual prejudice as a result of the delay. Id. at 7. 

 Additionally, the Complainants, through counsel, responded to the Motion to Dismiss by 

arguing that Vulcan was not prejudiced by the late filing because the Complainants filed the 

original Discrimination Complaint soon after the alleged conduct occurred. Resp. of Robinson & 

Haberlock in Opp. To Vulcan’s Mot. to Dismiss, 5-6. It was only after they were misinformed 

by MSHA that they withdrew and refiled. Id. The Complainants argue that the Motion to 

Dismiss should be denied and the various §105(c)(2) and §105(c)(3) actions should be 

consolidated. Id. at 8-9. 

36 FMSHRC Page 1092
III. Analysis: 

The Mine Act allows any miner who believes that he or she has been discharged, 

interfered with, or otherwise discriminated against due to his or her protected activity to file a 

discrimination complaint with the Secretary within 60 days of the alleged violation. 30 U.S.C. 

§815(c)(2). In the instant matter, the Respondent allegedly interfered with Robinson and 

Haberlock’s rights as miners’ representatives in August and September 2012. Robinson and 

Haberlock proceeded to file pro se discrimination complaints with the Secretary on September 

20, 2012, well within the 60-day period stated in the Act. However, based on the request and 

recommendation of the MSHA special investigator assigned to the case, Robinson and 

Haberlock signed a Department of Labor withdrawal form on October 9, 2012. 

Respondent engaged in a series of additional alleged discriminatory against Robinson and 

Haberlock, leading to additional filings of discrimination complaints, which are detailed supra. 

On March 25, 2013, the Complainants through counsel requested that the Secretary reopen their 

original discrimination complaints because the withdrawal was based on misinformation from 

the special investigator. MSHA refused to reopen the discrimination complaint, so the 

Complainants filed the instant case, based on the same facts as their September 20, 2012 

discrimination complaint. 

All parties in this case have noted that the Commission has consistently held that the 60-

day period for filing a discrimination complaint is not a jurisdictional requirement. See e.g. Sec’y 

of Labor ex rel. Nantz v. Nally & Hamilton Enterprises, 16 FMSHRC 2208, 2215 (Nov. 1994). 

Indeed, even the legislative history stated this point explicitly.1

 The Commission has excused a 

miner’s late filing on the basis of “justifiable circumstances.” Gary D. Morgan v. Arch of 

Illinois, 21 FMSHRC 1381, 1386 (Dec. 1999). In determining if such circumstances exist, a 

judge is required to review the facts “‘on a case-by-case basis, taking into account the unique 

circumstances of each situation.’” Id. (citations omitted). Justifiable circumstances include, “a 

case where the miner within the 60–day period brings the complaint to the attention of another 

agency or to his employer, or the miner fails to meet the time limit because he is misled as to or 

misunderstands his rights under the Act.” David Hollis v. Consolidation Coal Co., 6 FMSHRC 

21, 24 (Jan. 1984), citing legislative history, S.Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), 

 1

 Referring to discrimination cases, the Senate Committee stated: 

It should be emphasized, however, that these time frames are not intended to be 

jurisdictional. The failure to meet any of them should not result in the dismissal of 

the discrimination proceedings; the complainant should not be prejudiced because 

of the failure of the Government to meet its time obligations. 

S. Rep. No. 181, 95th Cong., 1st Sess. 24 (1977), reprinted in Senate Subcommittee on Labor, 

Committee on Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine 

Safety and Health Act of 1977, 3401, 2436 (1978). 

36 FMSHRC Page 1093
reprinted in Senate Sub-committee on Labor, Committee on Human Resources, 95th Cong., 2d 

Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 624 (1978). 

In the instant case, Robinson and Haberlock filed their discrimination complaints in a 

timely fashion, and only withdrew after they were misinformed by the MSHA special 

investigator. The later refiling, which led to the instant §105(c)(2) proceeding is largely based 

on the same set of facts as the original filing. These self-same circumstances were considered by 

the drafters of the Mine Act as circumstances warranting a late filing. 

Furthermore, there is no evidence of prejudice to the Respondent as a result of the late 

filing, a matter that is a “primary consideration” for the Commission in such cases. Morgan, 21 

FMSHRC at 1387. In its Motion to Dismiss, the Respondent offers no evidence of actual 

prejudice. Indeed, Vulcan concedes that it had notice of the miners’ complaints after the initial 

filings, meaning that it was not surprised by the facts alleged in this similar later filing. 

Based on the foregoing facts, the Respondent’s Motion to Dismiss is hereby DENIED. 

 /s/ Kenneth R. Andrews 

Kenneth R. Andrews 

Administrative Law Judge 

Distribution: 

William K. Doran, Esq., & Dinah L. Choi, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, 

P.C., 1909 K Street, NW, Suite 1000, Washington, DC 20006 

Jennifer Booth Thomas, Esq., Office of the Solicitor, U.S. Dept. of Labor, 618 Church St., Suite 

230, Nashville, TN 37219-2456 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main St., Whitesburg, KY 41858 

/mzm 

36 FMSHRC Page 1094
 

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 I FAX: 202-434-9949

 

April 2, 2014 

 

ORDER GRANTING SECRETARY'S MOTION TO EXCLUDE EVIDENCE OUTSIDE

THE SCOPE OF TEMPORARY REINSTATEMENT HEARING

Before: Judge Rae 

This case is before me upon an application for temporary reinstatement under section 

105(c)(2) of the Federal Mine Safety and Health Act of 1977,30 U.S.C. § 815(c). The 

Respondent has requested a hearing on the application for temporary reinstatement and a hearing 

date of April 29, 2014 has been set. On April 22, 2014, the Secretary filed a motion in limine to 

exclude Respondent's evidence extending beyond the scope of the temporary reinstatement 

hearing. 

Pursuant to section 105(c)(2), if the Secretary finds that a complaint of discrimination

was not frivolously brought, the Commission shall, upon an expedited basis on application, 

order the immediate reinstatement of the miner pending a final order on the complaint. 30 

U.S.C. § 815(c)(2). The scope of a temporary reinstatement hearing is limited to a 

determination by the judge as to whether a miner's discrimination complaint was frivolously 

brought; it is not the judge's duty to resolve conflict in testimony. Sec y o/b/o Ward v. Argus 

Energy WV, LLC, 34 FMSHRC 1875, 1877 (Aug. 2012); Secyo/b/o Billings v. Proppant 

Specialists, 33 FMSHRC 2383, 2384 (Oct. 2011); Sec y o/b/o Williamson v. CAM Mining, 

LLC, 31 FMSHRC 1085, 1088 (Oct. 2009). In determining whether the discrimination 

complaint was frivolously brought, the judge should evaluate evidence of the Secretary's 

prima facie case to determine whether it appears to have merit and that a non-frivolous issue 

exists. CAM Mining, LLC, 31 FMSHRC at 1089, 109l;Argus Energy WV, LLC, 34 FMSHRC 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), on behalf 

of JOSHUA D. BURKHART 

Petitioner 

v. 

PEABODY MIDWEST MINING, LLC, 

Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. LAKE 2014-342-D VINC-CD 

2014-01 

Mine ID: 12-02295 

Mine: Francisco Underground Pit 

36 FMSHRC Page 1095
at 1877; S. Rep. 95-181, at 36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on 

Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 624 

(1978). The Commission has found that a judge errs by assigning a greater burden of proof 

than required when weighing the operator's affirmative defense and rebuttal evidence 

against the Secretary's evidence of a prima facie case in a temporary reinstatement 

proceeding. CAM Mining, LLC, 31 FMSHRC at 1091. It has also stated that the temporary 

reinstatement hearing determines "whether the evidence mustered by the miners.established 

that their complaints are nonfrivolous, not whether there is sufficient evidence of 

discrimination to justify permanent reinstatement." Sec yof Labor o/blo Albu v. Chicopee 

Coal Co., 21 FMSHRC 717, 719 (July 1999); Argus Energy WV, LLC, 34 FMSHRC at 1878. 

The Secretary argues that in its request for hearing, Respondent offers evidence to justify 

Burkhart's termination and an affirmative defense and that such evidence for the purpose of 

creating testimonial conflict or establishing a rebuttal or affirmative defense should be excluded. 

Based on the case law discussed above, evidence that tends to show a rebuttal or 

affirmative defense and evidence that requires a determination of credibility of a witness will not 

be admitted for the purpose of the hearing on temporary reinstatement. 

It is hereby ORDERED that the Secretary's motion to exclude evidence beyond the 

scope of the temporary reinstatement hearing is GRANTED. 

 /s/ Priscilla M. Rae

Priscilla M. Rae 

Administrative Law Judge 

Distribution: 

Travis W. Gosselin, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., 

8th Floor, Chicago, IL 60604 

Arthur M. Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500,401 Liberty 

Avenue, Pittsburgh, PA 15222 

Joshua D. Burkhart, 4642 W. Street Road 64, Princeton, IN 47670 

36 FMSHRC Page 1096