i

September 2014 

TABLE OF CONTENTS

COMMISSION DECISIONS 

09-10-2014 EMERALD COAL RESOURCES, LP PENN 2011-168 Page 2409

COMMISSION ORDERS 

09-09-2014 OAK GROVE RESOURCES, LLC SE 2013-301 Page 2411

ADMINISTRATIVE LAW JUDGE DECISIONS 

09-04-2014 LHOIST NORTH AMERICA OF

VIRGINIA, INC.

VA 2013-169-M Page 2413 

09-08-2014 SEC. OF LABOR O/B/O KENNETH 

P. LEAR, JR. V. KENAMERICAN 

RESOURCES, INC. 

KENT 2014-708-D Page 2432 

09-08-2014 PICKETT MINING GROUP SE 2012-101-M Page 2444 

09-10-2014 AMERICAN COAL COMPANY LAKE 2011-1054 Page 2456 

09-11-2014 HIGMAN SAND AND GRAVEL, 

INC. 

CENT 2012-080-M Page 2484 

09-19-2014 YOUNGQUIST BROTHERS ROCK, 

INC. 

SE 2012-0266 M Page 2492 

09-25-2014 PEABODY MIDWEST MINING, 

LLC 

LAKE 2011-0277 Page 2504 

09-26-2014 RECON REFRACTORY & 

CONSTRUCTION 

WEST 2010-450-M Page 2514 

09-30-2014 EXCEL MINING, LLC KENT 2012-952 Page 2530 
ii

09-30-2014 MACH MINING, LLC LAKE 2009-263 Page 2533 

09-30-2014 BLACK BEAUTY COAL COMPANY LAKE 2009-328 Page 2548 

09-30-2014 CAMPBELL COUNTY HIGHWAY 

DEPARTMENT 

SE 2012-198-M Page 2579 

09-30-2014 HECLA, LIMITED WEST 2011-1390-RM Page 2600

ADMINISTRATIVE LAW JUDGE ORDERS 

08-13-2014 AMERICAN COAL COMPANY LAKE 2010-408-R X Page 2609

09-03-2014 DICKINSON-RUSSELL COAL 

CO. LLC

VA 2014-163-R Page 2621 

09-05-2014 CARL MOORE, employed by 

CALVARY COAL CORPORATION 

VA 2012-356 Page 2628 

09-10-2014 AFFINITY COAL COMPANY, LLC WEVA 2013-700-R Page 2631 
iii

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

Secretary of Labor, MSHA v. Knife River Construction, Docket Nos. WEST 2013-827-RM, 

WEST 2013-828-RM, WEST 2013-829-RM, WEST 2013-1009-M (Judge Manning, August 7, 

2014) 

Secretary of Labor, MSHA v. CAM Mining, LLC, Docket Nos. KENT 2013-196-R, KENT 

2013-197-R (Judge Andrews, August 19, 2014) 

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

Secretary of Labor, MSHA v. Oak Grove Resources, LLC, Docket Nos. SE 2013-301, SE 2013-

352, SE 2013-368, SE 2013-399 (Judge Feldman, Certified for Interlocutory Review, August 22, 

2014) 

Secretary of Labor, MSHA v. Virginia Drilling Co., Docket No. WEVA 2011-287 (Judge Gill, 

August 11, 2014) 

Secretary of Labor, MSHA v. The American Coal Company, Docket Nos. LAKE 2010-408-R, 

LAKE 2010-409-R, LAKE 2010-759 (Judge Miller, August 13, 2014) 

Previously unpublished in FMSHRC Volume 36, No. 8:

Secretary of Labor, MSHA v. The American Coal Company, Docket Nos. LAKE 2010-408-R X,

LAKE 2010-409-R X, LAKE 2010-759 (Judge Miller, August 13, 2014) 

COMMISSION DECISIONS
36 FMSHRC Page 2408
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

September 10, 2014 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 

v. 

EMERALD COAL RESOURCES, LP 

 Docket No. PENN 2011-168 

DECISION APPROVING SETTLEMENT

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

BY THE COMMISSION: 

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

1977, 30 U.S.C. § 801 et seq. (2012), and is before the Commission on review of the 

Administrative Law Judge’s decision upholding Order Nos. 8007973 and 8007974 for alleged 

violations of 30 C.F.R. § 75.400 and 30 C.F.R. § 75.360(b)(3), respectively. 35 FMSHRC 2645, 

2673 (Aug. 2013) (ALJ). The Judge found that Emerald Coal Resources, LP violated section 

75.400, that the violation was “significant and substantial,” and that it was an unwarrantable 

failure, when it allowed combustible material to accumulate in the mine, including pushing 

material to the face as part of its cleanup program. Id. at 2661-63. She also found that it violated 

section 75.360(b)(3) when Emerald failed to record the hazardous accumulations in the pre-shift 

examination log, and that this violation was also “significant and substantial” and an 

unwarrantable failure. Id. at 2666-67. 

The Judge further concluded that because Emerald was a “recidivist operator that [had] 

chosen to ignore MSHA’s § 75.00 standard” and had failed to record the violative conditions, 

thereby “expos[ing] miners to unknown hazards,” it was appropriate to assess an enhanced 

penalty amount for each order. Id. at 2672. Specifically, she increased the penalty for Order No. 

8007973 from $41,500 to $90,000 and for Order No. 8007974 from $32,800 to $40,000. Id. at 

2672-73. 

Emerald petitioned for discretionary review by the Commission challenging the Judge’s 

findings regarding the fact of violations, as well as the “significant and substantial” and 

unwarrantable failure designations. It also sought review of the Judge’s heightened penalty 

assessment for Order No. 8007973. The Commission granted the petition for review.

36 FMSHRC Page 2409
On August 28, 2014, the parties filed a Joint Motion to Approve Settlement pursuant to 

section 110(k) of the Act, 30 U.S.C. § 820(k), which provides that “[n]o proposed penalty which 

has been contested before the Commission under section 105(a) shall be compromised, 

mitigated, or settled except with the approval of the Commission.” The parties have agreed that 

with the exception of a reduction in penalty, Order Nos. 8007973 and 8007974 have been 

properly adjudicated as set forth in the Judge’s decision. According to the proposed settlement, 

the penalty amount for Order No. 8007973 shall be modified to reflect a penalty of $70,000, 

which is the statutory maximum for a non-flagrant violation. The penalty assessment for Order 

No. 8007974 shall remain at $40,000, for a total assessment of $110,000. 

We have considered the representations and documentation submitted in this case, and 

we conclude that the proffered settlement is appropriate under the criteria set forth in section 

110(i) of the Act, 30 U.S.C. § 820(i). 

Wherefore, the motion for approval of the settlement is GRANTED. It is ordered that the 

operator pay a penalty of $110,000 within 30 days of the date of this order. Upon receipt of 

payment, this case is dismissed. 

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Acting Chairman 

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen

William I. Althen, Commissioner 

36 FMSHRC Page 2410
COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

September 9, 2014 

 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

 v. 

OAK GROVE RESOURCES, LLC

Docket Nos. SE 2013-301 

SE 2013-352 

SE 2013-368 

SE 2013-399 

 

ORDER

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

BY THE COMMISSION: 

 

 These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2012). On August 22, 2014, the Administrative Law Judge certified for 

interlocutory review his Order Requiring Secretary’s Pre-Hearing Statement, which he issued on 

June 12, 2014. In that order, the Judge articulated criteria for establishing repeated flagrant 

violations pursuant to section 110(b)(2) of the Mine Act, 30 U.S.C. § 820(b)(2), and ordered the 

Secretary to submit a pre-hearing statement regarding whether the evidence in the case satisfied 

these criteria. Order at 13-14. The Secretary submitted his pre-hearing order on August 7, 2014, 

but the Judge determined that this statement failed to clarify a controlling question of law in the 

case. Certification at 3. 

 

 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. This criterion was met by the Judge’s August 22, 2014 

certification. 

 Second, under Rule 76(a)(2), a majority of 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. Here, however, review of the 

Judge’s June 12, 2014 Order would amount to an advisory opinion on an abstract legal principle. 

Although the Judge has articulated his view of the legal standard that should be applied in this 

case, he has done so by ordering the Secretary to submit a pre-hearing statement applying this 

36 FMSHRC Page 2411
standard. Consequently, at this juncture, the only question on review would be whether the Judge 

abused his discretion in ordering the Secretary to submit the pre-hearing statement. This does not 

constitute a controlling question of law, nor does it frame, in the proper procedural posture, the 

legal question on which the Judge seeks interlocutory review. 

 For the reasons set forth above, we deny interlocutory review. 

 

 

 

 

 

 /s/ Patrick K. Nakamura

 Patrick K. Nakamura, Acting Chairman 

 

 

 

 /s/ Robert F. Cohen, Jr.

 Robert F. Cohen, Jr., Commissioner 

 

 

 /s/ William I. Althen

 William I. Althen, Commissioner 

 

36 FMSHRC Page 2412
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 

September 4, 2014

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LHOIST NORTH AMERICA OF

VIRGINIA, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. VA 2013-169-M

A.C. No. 44-00082-309415

Docket No. VA 2013-191-M

A.C. No. 44-00082-312088

Mine: KIMBALLTON PLANT #1 

DECISION AND ORDER

Appearances: Willow E. Fort, Esq., U.S. Department of Labor, Office of the 

Solicitor, Nashville, TN for the Petitioner 

Charles H. Morgan, Alston & Bird, LLP, Atlanta, GA for the 

Respondent 

Before: Judge Rae

This case is before me upon petitions for assessment of civil penalties under section

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(d). 

A hearing was held in Blacksburg, VA. The parties submitted post-hearing briefs which 

have been considered. The docket consists of one citation and four orders that arose out of a

two-day inspection made by Mine Safety and Health Administration ("MSHA") inspector 

Billy Joe Ratliff1

 which commenced on October 10, 20I2. For the reasons set forth below, I 

find the Secretary has met his burden of proof on all cited violations as issued. 

FACTUAL BACKGROUND

The parties stipulated that: I) Lhoist was the operator of the Kimballton Plant #I, Mine

ID No. 44-00082; 2) The Kimballton Plant #I is a "mine" as that term is defined in 

1

 Billy Joe Ratliff has been a certified mine inspector for nine years. He is also a trained 

accident investigator and spent five years in law enforcement on several police and sheriff's 

departments. He also has nine years of mining experience including working with explosives. 

Tr. 12-17. He had been inspecting the Kimballton mine since 2005. Tr. 21. 

36 FMSHRC Page 2413
Section 3(h) of the Federal Mine Safety and Health Act ("Mine Act" or "Act"), 30 U.S.C. § 

802(h); 3) The products of the mine entered commerce, or the operations or products thereof 

affected commerce, within the meaning and scope of Section 4 of the Act, 30 U.S.C. § 803; 

4) Lhoist is an "operator" as defined in Section 3(d) of the Act, 30 U.S.C. § 802(d); 5) 

Lhoist's operations and this mine are subject to the jurisdiction of the Act; 6) The hearing of 

these dockets is subject to the jurisdiction of the Federal Mine Safety and Health Review 

Commission and its designated Administrative Law Judges pursuant to Sections 105 and 113 

of the Act; 7) Inspector Ratliff was acting in his official capacity and as an authorized 

representative of the Secretary when he issued the citation and orders; 8) True copies of the 

citation and orders were served on Lhoist as required by the Mine Act; 9) The total proposed 

penalty for the dockets herein will not affect Lhoist's ability to continue in business; 10) The 

Proposed Assessment (Form 1000-179 (MSHA)) contained in Exhibit A attached to the 

petition accurately sets forth the size of respondent in production tons or hours worked per 

year, the size of respondent of the mine at which the violations were issued, the total number 

of assessed violations in the preceding 24 month period, and the total number of production 

days for the preceding 24 month period; 11) The Secretary's copies of the citation and orders 

are authentic; 12) The Secretary's exhibits are authentic copies; 13) Respondent's copies of 

the citation and orders are authentic; and, 14) Respondent's exhibits are authentic. Joint Ex. 

1.

The Kimballton mine is the deepest underground limestone mine in the country and 

has been in operation since 1947. Some areas of the mine are 2300 feet deep and the 

individual tunnels range between 100 and 125 feet tall. Tr. 188-9. The entries are 

approximately 45 feet wide and 35 feet in height. The limestone is mined by explosives. 

The normal blasting cycle begins with loading the blasting rig with ANFO, which is a solid 

explosive agent consisting of essentially fertilizer and diesel fuel. The rig pulls up under the 

bulk tank and the ANFO is released into a large steel tank which is also known as the ANFO 

pot located at the rear of the rig. The blasting rig is then driven to the face that is to be 

blasted where the ANFO is pumped through a hose from the pot using compressed air into 

the holes drilled into the face of the stone. The rig is equipped with a boom and a basket 

which raises the miner up to feed the ANFO into the holes drilled on the upper part of the 

face. Tr. 43. The rig then moves on to the next face to be loaded for blasting. Once the shot 

is made, the loose material is then loaded onto haul trucks and brought to an underground 

crusher. It is then transported by conveyor up the slope and out to an exterior storage area. 

Tr. 29. At the completion of the cycle, the rig is then brought to a wash-down area for 

cleaning. The mine operates in two shifts; the evening shift is responsible for drilling and 

blasting the face in order to provide ample time for dust and gases raised during the blasting 

to settle before mining continues on the day shift. Tr. 27-35. Typically, this mine uses a 

Getman blasting rig on which the ANFO pot is welded and bolted on the rear of the vehicle. 

Tr. 50, 177, 182. At the time these violations were found, the mine was using a different 

vehicle as a blasting rig.

In response to an anonymous hazard complaint, MSHA Inspector Billy Joe Ratliff 

went to the Kimballton mine. He did not find any hazards as a result of the complaint; 

however, while there, he requested a meeting with all miners in the underground I 0 East 

lunchroom to discuss another issue. A rank-and-file miner told Ratliff to take a look at the 

36 FMSHRC Page 2414
truck being used as a blasting rig which was parked directly outside. Tr. 169. What Ratliff 

found was a Ford F-250 pickup truck that had an ANFO pot rigged in the bed with a 

compressor hitched behind the truck. Tr. 41-2. He learned upon further investigation that on 

October 4th the transmission on the Getman blasting rig had given out. Management 

directed the employees on Monday, October 8th to rig the pickup as a blasting rig. This was 

accomplished by placing an ANFO pot that had been taken off an old Volvo blasting rig 

directly behind the cab of the truck and tying a series of climbing ropes, straps, and ratchets 

around the pot. Tr. 52, 105, 108-12. The pot was a large cylindrical tank positioned in an 

upright manner with the top extending several feet above the roof of the truck. Ex. S-3 p.3 

Photo. 

Because the pickup truck was significantly smaller than the Getman rig the manner in

which it was used in the blasting sequence was very different from the norm. It was too small 

to pull under the bulk tank to load the ANFO into the pot. Instead, the truck was being driven 

to the face that was to be blasted where it was met by a flatbed truck carrying 50 pound bags 

of ANFO. Tr. 48, 74. The ANFO bags were handed off from one miner standing on the 

flatbed truck to a miner standing on the rear of the pickup truck and then the miner lifted the 

bags overhead and poured the ANFO by hand into the pot through a funnel located at the top 

of the tank. Tr. 48, 63, 74-6. In order to access the funnel, the miners were standing on the 

side rails of the pickup truck's bed or on the roof of the truck. Tr. 64. The truck was used in 

this fashion on the night of October 8th. The next morning a miner put in a work ticket for a 

safe way to load the pot because the tank was too tall and the bags had to be lifted overhead. 

Tr. 201; Ex. R-5. Mine Manager Luxbacher2 called down to the repair shop to ensure this 

work order was being fulfilled and a small platform was placed in the truck bed before it was 

used again on the night of the 9th. Id The miners informed Ratliff, however, that they 

continued to stand on the rails and roof of the truck because the platform, or step, would shift 

and slide under their feet. Tr. 64. They also stood on the side of the truck when the ANFO 

bags were being transferred from the flatbed to the pickup truck because they could not 

reach out far enough from the platform. Tr. 74.

Based upon his observations of the pickup truck and the conversations with the 

miners, Ratliff issued one citation and five orders discussed herein.

LEGAL PRINCIPLES

Significant and Substantial/Gravity

A significant and substantial ("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). A violation is properly designated S&S "if, based upon 

the particular facts surrounding the violation, there exists a reasonable likelihood that the 

                                                            2 Luxbacher has been mine manager for five years and has been in the mining 

industry for ten years. He is a graduate of Virginia Polytechnic Institute and State 

University with a degree in mine engineering. Tr. 187-90.

36 FMSHRC Page 2415
hazard contributed to will result in an injury or illness of a reasonably serious nature." 

Cement Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). As is well recognized, 

in order to establish the S&S nature of a violation, the Secretary must prove: (1) the 

underlying violation; (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); see also Buck Creek Coal 

Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v. Sec'y of Labor, 861 

F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

It is the third element of the S&S criteria that is the source of most controversies

regarding S&S fmdings. The element is established only if the Secretary proves "a 

reasonable likelihood the hazard contributed to will result in an event in which there is an 

injury." U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S 

determination must be based on the particular facts surrounding the violation and must be 

made in the context of continued normal mining operations. Texasgulf, Inc., 10 FMSHRC 

1125 (Aug. 1985); U.S. Steel, 7 FMSHRC at 1130.

The S&S nature of a violation and the gravity of a violation are not synonymous. The 

Commission has pointed out that the "focus of the seriousness of the violation is not 

necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S 

inquiry, but rather on the effect of the hazard if it occurs." Consolidation Coal Co., 18 

FMSHRC 1541, 1550 (Sept. 1996).

Negligence/Unwarrantable Failure

Negligence is conduct which falls below the standard of care established under the 

Mine Act. Under the Act an operator is held to a high standard of care and is required to be 

on the alert for conditions and practices that may cause injuries and to take necessary 

precautions to prevent or correct them. 30 C.F.R. § 10.0(d). High negligence is defined as 

when "[t]he operator knew or should have known of the violative condition or practice, and 

there were no mitigating circumstances." 30 C.F.R. § 100.3 Table X.

In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission reiterated

the law applicable to determining whether a violation was the result of an unwarrantable 

failure: 

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. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 

1987), the Commission determined that unwarrantable failure is aggravated 

conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable 

failure is characterized by such conduct as "reckless disregard," "intentional 

misconduct," "indifference," or a "serious lack of reasonable care." Id at 2003-

04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) 

36 FMSHRC Page 2416
("R&P"); see also [BuckCreek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th 

Cir. 1995)] (approving Commission's unwarrantable failure test). 

Whether conduct is "aggravated" in the context of unwarrantable failure 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 Consolidation Coal Co., 22 FMSHRC 

340, 353 (Mar. 2000) ... ; Cyprus Emerald Res. Corp., 20 FMSHRC 790, 

813 (Aug. 1998), rev 'don other grounds,195 F.3d 42 (D.C. Cir. 1999); 

Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons 

Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 

FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 

1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 

1988). 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. Consol, 22 FMSHRC at 353. Because 

supervisors are held to a high standard of care, another important factor 

supporting an unwarrantable failure determination is the involvement of a 

supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203,225 (Mar. 

1998).

It is not necessary to find that all factors are relevant or deserving of equal weight in

order to determine that a violation is unwarrantable. /0 Coal, 31 FMSHRC 1346, 1351 (Dec.

2009); Eastern Associated Coal Corp., 32 FMSHRC 1189 (Oct. 2010). 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Citation No. 8639930

This safe access Section 104(d)3 citation was written in accordance with 30 C.F.R. §

57.11001 which requires that all working places have a safe means of access provided and

                                                            3

Section 104(d) of the Mine Act states in relevant 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 a nature as could significantly and substantially contribute to the cause and effect of a 

coal or other mine safety or 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 fmding in any citation given to the operator under this Act." 

36 FMSHRC Page 2417
maintained. It was issued because a safe means of access to load the ANFO pot on the Ford 

F- 250 pickup truck was not provided. The miners were using the roof, side rail or unsecured 

step without handrails to load the 50 pound bags of ANFO into the top of the tank. Ratliff 

noted in his citation that the truck had been used in this fashion since October 8, 2012 and 

that this was not the first time the tank had been used on the back of the truck.

Ratliff assessed the gravity of the violation as reasonably likely to result in a fatal

accident to one miner, S&S, and the result of high negligence. He issued the citation as an

unwarrantable failure to comply with the standard because Luxbacher was aware of the 

danger and allowed the pickup truck to be put into service. Ex. S-1. The Secretary has 

proposed a specially assessed civil penalty in the amount of $11,900.00. 

In addition to the previously stated facts, Ratliff considered several additional facts in

issuing this citation. As he testified, the ANFO pot was loaded at the face where lighting was

poor. Tr. 61-2. The bed of the truck had a plastic liner which made the unbolted step (or

platform) shift easily when a miner stepped on it. An employee told Ratliff because of the 

way the platform was positioned in the truck bed, the miner on the truck would have one foot 

on the side rail and one foot on the unsecured shifting platform in order to reach for the bag of 

ANFO being passed to him from the flatbed truck. Tr. 75. When a miner was lifting bags 

overhead, this platform became an elevated working place. Neither a handrail nor fall 

protection was provided. Tr. 60, 72-3. Additionally, because ANFO contains diesel fuel, it can 

be slippery if spilled. There was residue in the bed of the truck apparently from spillage. Tr. 

59-68. All of these factors led to the inspector's determination that the miners did not have 

safe access to the ANFO pot creating a slip and fall hazard in violation of this standard.

Luxbacher testified that he reviewed the repair ticket submitted by a miner on the

morning of October 9th requesting a safe means of accessing the pot. He called the repair 

shop to ensure the platform would be available on that night shift. Tr. 199-200. It is his 

position that providing the platform made access to the pot safe at least as of the night of 

October 9th. Resp. 's Post-Hearing Br. He stated that he "believed" that the bags were only 

lifted to chest height but he was not "positive" of that. Tr. 221. He also testified that before 

Ratliff arrived at the lunchroom and saw the truck, he (Luxbacher) climbed into the bed of 

the pickup truck to inspect it for ANFO residue and cleaned ANFO pellets that had spilled 

around the top of the pot. Tr. 205. Luxbacher also confirmed that he was well aware that this 

F-250 pickup truck had been used in the same manner as a blasting rig in the past and that he 

issued the order to the foreman to put the system back on the truck when the Getman rig was 

taken out of service. Tr. 195.

I reject Lhoist's position that the violation was abated with the installation of the 

platform. A reasonable person would recognize that the miners still had to lift the bags 

overhead to load the pot which necessitated standing on an unsecured platform and standing 

on the side rails and the roof of the truck. The violation has been established.

In Ratliff s opinion, this violation was S&S. The platform was not bolted or 

otherwise properly secured in the bed of the truck. The bed liner was made of plastic which 

caused the platform to slip under the weight of the miner's feet. ANFO was spilled creating 

36 FMSHRC Page 2418
a slippery surface as well. The lighting was poor and the bags were heavy. There were 

straps, ropes, hoses and other material cluttering the area. A miner could easily lose his 

balance, slip, or trip when stepping on this wobbly platform or the roof or sides of the truck 

resulting in a head injury from striking the comers of the truck or pieces of equipment in and 

around it. Tr. 73. Breaks, bruises and sprains were also reasonably likely consequences of a 

fall. Tr. 74.

An inspector's opinion of an S&S violation is entitled to substantial weight. 

Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc. v. 

FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995). Based upon the circumstances present here, I 

find the inspector to be credible and his opinion is supported by the evidence. I find this 

violation to be S&S.

The gravity of this violation is very serious. The hazard created by management put 

the miner filling the ANFO pot at a substantially likely risk of a fatal injury.

The inspector marked the negligence involved in this violation as high because

management directed the miners to rig up the pickup truck in this manner. It had been done

before in the same way. This was confirmed by Luxbacher at trial. Tr. 195. Blaster Darrell

Haymore testified that he had been the one to rig it in this manner on October 8th and knew 

how to do it because he had done it the same way before. Tr. 173. Miners Gregory Parcell and

Melvin Whitaker also confirmed that it had been in service in this condition during two night

shifts before Ratliff issued the violations and it was taken out of service. Tr. 176, 180. 

I do not find the installation of the platform a mitigating factor for the reasons set 

forth above. High negligence is appropriate.

The Secretary has assessed this violation as unwarrantable failure. Lhoist had notice 

that the transmission on the Getman rig was failing at least as early as October 4th and took 

no action to procure a rental from any source. Ex. R-4. Indeed, Luxbacher testified that he 

made no efforts to do so prior to the citation being issued to Lhoist. Tr. 219-20. There were 

numerous cords, ropes and other items coupled with spillage of ANFO in the bed of the truck 

which posed an obvious slip and trip hazard that had been uncorrected. In fact, the truck had 

been used in the same manner in the past and was ordered by Luxbacher to be put back in 

service without any modifications. Additionally, this was the seventh unsafe access violation 

issued at this mine putting Lhoist on notice that greater compliance efforts were necessary. Tr. 

84. 

Lhoist admits that safe access "may have been lacking" on the night of October 8th 

but having been made aware of the issue on the morning of the 9th it took prompt action to 

install the step, or platform, after a miner had requested a safe means of access. This prompt 

response does not rise to the level of aggravated conduct in its opinion. Resp. 's Br. at 9. 

Alternatively, it argues that if access to the pot remained unsafe thereafter, Luxbacher was 

unaware of it and the violation was not obvious. There were no further complaints from the 

miners and he used it himself and did not notice any problems with it. Tr. 207; Resp. 'sBr. at 

10. I find this argument troubling. Management is held to a higher standard of care than the 

36 FMSHRC Page 2419
rank-and-file miner. It should not wait for a miner to make a safety complaint or to be injured 

before it becomes aware of a hazard such as this. Management should be ever vigilant for 

such hazards and be proactive in eliminating them. It would have been obvious to even a lay 

person that the manner in which the ANFO pot was set up on this truck posed a serious risk 

of injury. The pot was filled through a funnel or cone located at the top which was positioned 

several feet above the roof of the truck. Ex. S-9 p.8 photograph. It was readily apparent that 

in order for the miners to pour the 50 pound bags of ANFO into the pot they would have to 

climb on the side and/or roof of the truck to do so. The truck was employed throughout the 

night shift of October 8th in this condition. Luxbacher was also aware that it had been rigged 

the same way in the past and he should not have waited until a miner came forward to 

complain about the unsafe manner in which they were working. 

Ronald Munsey4 was the night shift foreman at the time of this inspection. It was his 

responsibility to direct the location of the shots, check readings, and supervise the men. Tr. 

88. He should also have been aware of the manner in which the miners were accessing the

pot.

Despite Luxbacher' s claims that he was unaware that the step failed to eliminate the 

safe access violation, he admitted that on October 1Oth, he climbed aboard the pickup truck, 

inspected the cone, or funnel, at the top of the pot and cleaned spilled ANFO material from it. 

He therefore had to have been aware that the platform was not bolted or otherwise properly 

secured to the bed of the truck allowing it to move underfoot. He also would have to have 

noticed that the platform did not alleviate the miners' need to reach overhead and lean forward 

to access the funnel. See photograph at Ex. S-3 p.3. In fact, on cross-examination he as much 

as admitted this fact. Tr. 221. Further, he was aware, or should have been, that the bags of 

ANFO were being brought to the face on a flatbed truck and were being handed across the 

back of the flatbed to the miner on the pickup. As the miners interviewed by Ratliff 

described it, this would require the miner loading the pot to perform a balancing act with one 

foot on the unsecured step and one on the side of the truck to transfer the bags from the 

flatbed to the pickup truck. They told Ratliff that the platform would wobble and shift as 

they performed this maneuver. Clearly they were still concerned for their safety as one 

miner suggested to Ratliff that he take a look at the truck while it was parked by the 

lunchroom. Tr. 169. The night foreman would have been present during the blasting cycle 

and would certainly have been aware that the platform was not providing them with safe 

access to the pot. Tr. 87-8. Luxbacher's claim that management was unaware of the 

violation and that it was not obvious after the platform was installed is not credible.5

Placing the platform in the bed of the truck did not make access to the pot safe. It also

was not a reasonable attempt to abate the violation. Having been made aware that the miners

were concerned for their safety in loading the ANFO pot, it would have been prudent and

4

 Munsey was deceased at the time of this hearing. 

5

 In assessing Luxbacher' s credibility, I have also considered the fact that at the time 

of this hearing a Section 110(c) investigation was pending which could result in subjecting 

him as an individual to civil penalties for knowingly authorizing, ordering, or carrying out a 

violation under the Mine Act. 

36 FMSHRC Page 2420
reasonable for Luxbacher or the night foreman to have inspected the step on the 9th to insure 

it was properly installed and secured before the truck was used on the second night. It also 

would have been reasonable for management to contact one of the companies that leased 

blasting rigs to obtain another until the Getman was repaired. Ratliff testified that he 

contacted Austin Powder and Orica and was told a rig with a driver could be rented which 

would have been a safer option than rigging the ANFO pot on the back of a pickup truck. Tr. 

57. Another way to have abated the violation would have been to cease blasting until the 

repairs could have been made to the Getman rig. In any event, putting an unsecured step that 

wobbled and shifted underfoot in the back of the pickup truck that did not alleviate the need 

to lift heavy bags overhead and climb on the side or roof of the pickup truck cannot be 

considered a reasonable step to abate the violation. 

The combination of factors that made this violation obvious also posed a high degree 

of danger to the miners. In the event a miner should trip on the many obstacles located on 

and around the tank or slip on the roof or side rails of the truck or lose his balance when 

stepping on the platform that wobbled and shifted underfoot, there was a very high degree of 

probability that a serious injury would result. As the inspector testified, there were sharp 

corners and hard objects in the area such as a toolbox, the tow hitch, the platform itself, and 

the ground below that could cause fatal head injuries or other serious injuries.

The violation did not exist for a brief period of time as suggested by the Respondent.

This was the second time management had put this make-shift rig into service. It had been 

used this second time on the night of October 8th and 9th in this violative condition. It would 

have been used again on the 1Oth and for an untold number of nights thereafter had it not 

been for Ratliff's intervention. Taking into consideration that this was the second time it was 

used in this manner without the danger being recognized or remedied coupled with the very 

short time in which it would take for a miner to lose his balance and fall suffering a serious or 

fatal injury, the amount of time miners were exposed to the violative condition was 

excessive. Furthermore, in a situation where the violation existed for a relatively brief period 

of time, the high degree of danger posed by the hazardous condition and its obvious nature 

may still lead to an unwarrantable failure determination. This is especially so when 

management is involved in creating the danger. SecyofLabor v. Midwest Material Co., 19 

FMSHRC 30 (Jan. 1997); Capitol Cement Corp., 21 FMSHRC 883 (Aug. 1999). 

The inspector noted on his citation that Lhoist had received seven prior safe access

violations, which I deem sufficient to have put them on notice that greater efforts at 

compliance with this standard were necessary.

For all of the above reasons, I find that this violation is an unwarrantable failure to 

comply with the safe access standard.

Order No. 8639931

This Section 104(d) order was issued in violation of30 C.F.R. § 57.13011 which 

requires all air receiver tanks be equipped with one or more automatic pressure-relief valves 

and indicating pressure gauges which accurately measure the air pressure in the tank. This 

36 FMSHRC Page 2421
ANFO tank had neither gauge on it although it did when it was on the Volvo rig.

The inspector assessed the gravity as reasonably likely to result in a fatal accident, 

S&S, affecting two miners with high negligence. Ex. S-4. The Secretary has proposed a civil 

penalty in the amount of$4440.00.

Lhoist admits to the violation and contests only the unwarrantable failure designation.

 

Ratliff testified that the compressor hitched behind the truck sends air into the ANFO 

pot where it pushes the explosive agent through the tank into the hoses and delivers it to the 

drilled blast holes. The relief gauge and the indicating gauge are both designed to prevent the 

receiving tank from rupturing in the event of over pressurization. The former off gasses 

excess pressure while the latter provides an accurate reading of the amount of pressurized air 

in the tank. Ratliff was told by a miner that he had asked Luxbacher when transferring the 

tank from the old Volvo rig to the pickup whether the "pop-off" valve was needed. Luxbacher 

responded in the negative. Tr. 97. Luxbacher denies any recollection of this. Tr. 208. The tank 

was equipped with these two gauges when it was on the Volvo rig but they were removed 

and based upon Luxbacher' s direction, were not put back on. Tr. 97, 103. 

The compressor itself is equipped with a regulator which shuts the compressor down

when it gets up to a certain pressure. It is also equipped with a one-way back pressure relief

valve which would prevent any pressure that exceeds the capacity of the compressor from 

over pressurizing it. Neither protects the ANFO pot from being over pressurized. Tr. 99. 

The ANFO tank was re-plumbed and reconfigured with different fittings and hoses when it 

was installed on the pickup. As a result, there would be no way to know what its maximum 

pressure capacity was. A recertification and rating would be needed to make this 

determination. Tr. 100-2. Striking the proper balance between the two components was now 

left up to chance. I find under continued normal mining operations, an over pressurization 

and rupture of the tank was reasonably likely to occur. Should the tank rupture, it could 

impale someone or the compression could cause a miner to fall and strike his head or other 

body part against hard objects in the immediate vicinity causing a fatal or serious injury. Tr. 

95-6.

I find the evidence is sufficient to satisfy the Mathies criteria.

The gravity of this violation is very serious, affecting two miners.

Negligence/Unwarrantable Failure

Lhoist contests the unwarrantable failure assessment, addressing three points. First,

Luxbacher testified that he did not consider the ANFO pot an air receiver tank. He did not 

know or have reason to know that the tank did not have the gauges or that they were needed.

Secondly, the tank was in service for just two days before it was removed from service. 

Lastly, the Secretary did not meet his burden of proving the elements of an unwarrantable 

failure. The inspector offered no testimony regarding his reasons for designating this 

violation as unwarrantable.

36 FMSHRC Page 2422
The Secretary argues that although the inspector determined that the operator acted 

with high negligence, the evidence as a whole supports a finding of a complete disregard for 

the safety of the miners. Sec y 's Br. n.6. In fact, the inspector stated that he felt the negligence 

was high because the operator was aware of the missing gauges when a miner asked 

Luxbacher if the pop-off gauge was needed. It was an unreasonable belief on the part of 

Luxbacher that it was not. Tr. 103. I find no mitigating factors present to reduce the high 

negligence. 

With respect to unwarrantable failure, I find the operator knew or should have known 

that the ANFO tank was an air tank and that the violation existed. Luxbacher has his mine

engineering degree from Virginia Polytechnic Institute and State University. As an engineer, 

it should come as no surprise to him that a tank that receives air from a compressor is an air

receiver subject to this mandatory standard. Additionally, as a mine manager, he is 

responsible for complying with the mandatory standards of the Act. Section 57.13015 requires 

that all air receivers be inspected by a qualified inspector with records kept available for the 

Secretary. The ANFO pot, whether mounted on the pickup truck or on the other blasting rig, 

would be subject to this inspection and record keeping requirement. The mine manager is 

charged with having knowledge of this provision and complying with it. This requirement, 

coupled with the fact that the pot had these gauges on it before it was removed from the 

Volvo rig, confirms that Luxbacher, at the very least, should have known this piece of 

equipment was an air receiver requiring the two gauges. His claim that it just didn't occur to 

him detracts greatly from his credibility. On the other hand, Ratliffs testimony is credible 

and establishes that management was aware of this violation. I also find that in addition to 

being known to management this violation was knowingly authorized by management. 

The danger posed by not having the pressure relief valve in particular is obvious. It is

common knowledge that a contained tank that receives pressurized air, water or gas is subject 

to explosion if it becomes pressurized beyond its tolerance level. Safety measures are critical 

to prevent this from occurring. The relief valve performs this function. The indicator gauge 

would normally also contribute a measure of safety by providing a visual reading of the 

pressure in the tank. In this case, however, the tank was reconfigured so that there was no way 

to determine its safe working pressure. Knowing how much pressure was in it would not, by 

itself, provide sufficient warning of its being over-pressurized, making this violation 

additionally aggravated. The danger posed by a tank of this size blowing apart requires little 

elaboration. Ex. S-9 p.l-12. The miner loading the tank would be standing within inches of it 

during the blasting cycle. 

The absence of the gauges was also obvious. Because the two gauges were an 

integral and critical component of the tank their absence would be readily apparent to one 

using or inspecting the tank. Their absence certainly became apparent to management when 

a miner asked management whether the pop-offvalve should be put back on.

The violation existed for two night shifts before Ratliff interceded and this rig was 

taken out of service. An explosion of an over-pressurized tank can happen in an instant. Using 

this rig for one shift was excessive; two was unfathomable. Had Ratliff not interceded, there 

is no doubt it would have been used until the transmission work on the Getman rig was 

36 FMSHRC Page 2423
completed. I find the violation, under the specific circumstances of this case, was extensive 

and existed for an unreasonably long period of time without any action taken to abate the 

violation. 

Absent in the record is any evidence of mitigation by the Respondent. The 

unwarrantable failure is appropriate.

Order Number 8639932

30 C.F.R. Section 57.14100(b) states "defects on any equipment, machinery, and 

tools that affect safety shall be corrected in a timely manner to prevent the creation of a 

hazard to persons." This order was written because the inspector found that the ANFO tank 

was not properly secured to the truck creating a hazard to persons. Specifically, he recorded 

that climbing straps, rope, and a ratchet strap were wrapped around the top of the tank and 

had become loose. There was also a loose fitting at the top of the tank through which 120 psi 

of air was being pushed.

The violation was marked as reasonably likely to result in a permanently disabling 

injury to one person, S&S, and the result of high negligence. Ratliff also found it to be an

unwarrantable failure on the part ofLuxbacher. This standard had been cited six times in the

preceding two years. Ex. S-7. The Secretary proposes a penalty in the amount 

of$16,400.00.

The tank was not welded or bolted to the bed of the truck in the usual fashion as

confirmed by Lhoist' s witnesses. Tr. 177, 182. It was held in place by a series of climbing

ropes, regular rope and tightening ratchets. The ends of the ropes were secured with some

fashion of knots which Ratliff described as "granny knots" similarly used to tie shoe laces. 

One end of the rope was attached to a tool box in the bed of the truck. Tr. 112. The ratchet 

was wrapped around the top of the tank and hooked into itself. Tr. 105-16; Ex. S-3 and Ex. 

S-9, photographs. The straps and ropes were loose and the tank moved easily as did the 

fittings supplying the pressurized air to the tank, according to Ratliff. The straps and ropes 

were soaked in ANFO which could decrease their load bearing capacity and no one Ratliff 

spoke at the scene was able to tell him the load rating for the straps and ropes which was of 

concern to him as well. Tr. 107, 118. The truck is driven inside the mine creating a danger of 

the tank falling out of the truck during transportation injuring persons in the area, in Ratliff's 

opinion. Tr. 118-19.

Ratliff reached the conclusion that the condition created a defective piece of 

equipment which posed a danger to miners in the event it fell off the truck while moving or 

tipped while a miner was leaning against it. Ratliff was aware that the truck had been used 

in this manner on the night of the 8th and 9th and was ready to be used again on the 1Oth had 

he not interceded. Miners Darrell Haymore, Gregory Parcell, Melvin Whitaker, Jr., and 

Steven Chandler, all Lhoist witnesses, confirmed this information. Tr. 172-4; 176-8; 180-2; 

185.

36 FMSHRC Page 2424
concluding defects existed was purely speculative because he was not aware of the load 

rating for the climbing straps or whether they would deteriorate or weaken when exposed to 

ANFO. He also could not properly identify the type of knot used on the ropes. Resp. 's Br. at 

12-13. Luxbacher testified that the McMaster-Carr chart lists nylon as resistant to oil and 

grease and therefore these ropes were capable of holding the tank in place. He admitted on 

cross- examination that the information given on that website does not say the rope is resistant 

to ANFO. In fact, the McMaster-Carr chart Luxbacher referred to states that fibrous nylon 

rope material is resistant to rot and mildew; it says nothing about oil and grease. It also states 

that all nylon ropes can stretch and lose strength when wet. See www. Mcmaster.com.fibrous 

rope material. Luxbacher described the knots Ratliff called "granny knots" as "water knots" 

which as a former climber he knows are strong climbing knots. Tr. 212. The water knot, 

however, is designed to join two pieces of rope together, not to loop around an object and tie 

back onto itself as was done here. It is also known to slip requiring inspection before each use. 

In climbing, it is known as the death knot for its fallibility. See www. Wikipedia.com. water 

knots. Luxbacher further admitted that he did not know if the ropes used on the pot were used 

or new. Tr. 222-3. He was also not aware of their load rating. Tr. 223. 

It is not necessary to consult these reference materials, however, to determine that

Ratliffs opinion was far more than speculative. The photographs introduced by the 

Secretary make clear to even a lay person, let alone someone familiar with the mining 

industry as Ratliff is, that the ANFO pot was rigged up in a make-shift manner. The ropes 

and straps were wrapped and looped in a haphazard fashion through and around various 

hoses, the framework of the unsecured platform, the tank and other objects in the truck bed. 

The ends of the ropes were frayed and damaged. Ex. S-9. Additionally, Ratliff observed 

first-hand that the ropes and straps were loose from use and the pot was able to be moved 

easily. Although Luxbacher claimed he did not notice the tank was unstable when he 

cleaned ANFO off it on the lOth, Steven Chandler, Lhoist's witness, confirmed that the tank 

had tilted and had some movement. Tr. 212, 185. Miners Gregory Parcell and Melvin 

Whitaker, Jr., testified that they felt bolting and welding the tank was more secure than tying 

it with these straps and ropes. Tr. 178, 182. I find Lhoist's argument unpersuasive. 

Lhoist also argues that the truck was out of service when Ratliff observed it and there 

was no evidence that it would not have been corrected prior to use. I find this argument also 

fails. The truck was in the same condition it had been in since management told Haymore and 

another miner to rig it up on the 8th. Tr. 172-4. The truck was rigged and ready for use on the 

1Oth as well. In fact, it was not until Ratliff found the violations on the 1Oth that the afternoon 

shift foreman called Luxbacher to tell him they would need to take it out of service, as 

Luxbacher testified.. Tr. 206. Based upon these facts, the truck was available for use and was 

not out of service. A piece of equipment can be inspected and cited as long as it is not tagged 

out and parked for repairs. Alan Lee Good, an individual doing business as Good Construction, 23

FMSHRC 995, 997 (Sept. 2001). As long as a piece of equipment is available for use, it must

comply with MSHA safety standards. Ideal Basic Indus., Cement Div., 3 FMSHRC 843,844

(Apr. 1981). 

Next, Respondent raises the notice requirement. As noted above, this violation would

have been apparent to a lay person. The photographs depict a tower of a tank extending far

36 FMSHRC Page 2425

Lhoist argues that a violation has not been proven. It claims that Ratliff's basis for 
above the roof of the truck's cab haphazardly looped and tied with frayed ropes and straps tied 

to unsecured objects in the bed of the truck. It appears to be off balance without being secured 

in all directions. Lhoist states that each of its miners who appeared as witnesses are competent 

and experienced and each testified that the tank did not pose a hazard. I recognize that these

witnesses were well aware they were called to support the Respondent's position. I also take

notice of the fact that each of them on cross-examination admitted that they would have been

more comfortable with the tank being welded and bolted to the bed as was done with the 

other rigs. I fmd this more telling than their assertions that it was safe. It also bears repeating 

that a miner told Ratliff to take a look at the truck when it was parked outside the lunchroom. 

Clearly, the miners had concerns for their safety. The standard to be applied here, as 

Respondent notes, is whether a reasonably prudent person familiar with the mining industry 

would have recognized that the manner in which this tank that was loose and tilting was tied 

up posed a hazard and would have removed it from service. La Farge North America, 35 

FMSHRC 3497 (Dec. 2013). The answer to that is resoundingly, yes.

S&S

I find this violation was properly marked as S&S. The tank had become visibly loose 

and tilted after it was used on two shifts. The truck was used throughout each night shift 

driving to and from the faces and the wash down station. Miners leaned up against it and 

climbed all around it to pour the ANFO into the top of the pot to ready the shots. Under 

continued normal mining operations, had it not been for Ratliff s interception, the straps and 

ropes would have continued to loosen and deteriorate. It was reasonably likely that it would 

either fall during transportation or fall or tilt when leaned up against or bumped into by a 

miner filling the pot. This is in turn would cause a miner to be struck or pushed off balance 

causing serious injuries such as head injuries, broken bones, sprains, and cuts. 

The gravity is serious and would cause injury to at least one miner. 

Negligence/Unwarrantable Failure

The violation was created by management when Luxbacher ordered the pickup truck 

to be rigged in the same manner in which it had been in the past. He supplied the straps that 

were used but did not determine their load capacity or ensure that only new ones were used. It 

was not only apparent to Ratliff that they were loose allowing the tank to move creating an 

unsafe condition. Lhoist's witnesses were well aware that the tank was tilting and was not 

secured in place. Management did nothing to ameliorate or mitigate the hazard. It acted with 

high negligence. 

In addition to management creating this obvious and very dangerous hazard to the

miners, Lhoist had been cited seven previous times under this standard putting them on 

notice that greater efforts at compliance were necessary. It existed through two night shifts 

and was to be used on a third shift. In view of the fact that after two shifts, the ropes and 

straps had already loosened allowing the tank to tilt and move easily, the condition existed 

for a significant period of time already. Nothing was done in mitigation of this hazard before 

the order was issued. 

36 FMSHRC Page 2426
Unwarrantable failure is supported by the evidence. 

Order Number 869933

In relevant part, 30 C.F.R. § 57.6202(a)(4) requires that all vehicles containing 

explosive material have at least two dry-chemical fire extinguishers onboard. This violation 

was charged because there was one extinguisher located behind the rear seat in the cab of the 

truck. The order was written as reasonably likely to result in permanently disabling injuries 

to one miner, S&S with high negligence, and an unwarrantable failure to comply. Ex. S-10. 

The proposed penalty is $2,000.00.

The Respondent argues that this standard was not violated because the second

extinguisher was located on the compressor trailer which was attached behind the truck. It

provides no legal basis for this statement.

The language of the standard speaks for itself. It requires the vehicle containing the

explosive material have two extinguishers, not the vehicle including any trailers or other 

pieces of equipment that may be attached thereto. The purpose of the standard is to provide 

two readily accessible extinguishers as a means of escape in the event of a fire. Two are 

required to because there are often two miners operating a blasting rig who may need to 

evacuate or suppress a fire. The Safety Standards for Explosives at Metal and Nonmental 

Mines, 56 Fed. Reg. 2070, 2078 (Jan. 18, 1991). At hearing, Luxbacher testified that he 

"would have thought maybe they would have thrown a second in since they put the ANFO 

pot on it. It wasn't something I thought to check for." Tr. 230. It is clear from Luxbacher's 

testimony that he was aware of the requirements of this standard but did not care enough to 

ensure it was complied with. This violation has been established.

S&S

The Respondent has presented no argument regarding the S&S designation of this

violation. I find that the lack of the second fire extinguisher contributed to a discrete hazard 

of the miners not being able to suppress and escape a fire on or near this vehicle carrying 

explosive material. Injuries sustained in a fire would be at least permanently disabling. The 

event of a fire is presumed in this instance. Consolidation Coal Co., 35 FMSHRC 2326 

(Aug. 2013). The S&S nature of the violation has been established.

The gravity is serious and could result in smoke inhalation and burns to the miner 

loading the ANFO pot and the miner on the flatbed truck delivering the ANFO at the face.

Negligence/Unwarrantable Failure

Luxembacher displayed a complete and reckless disregard for the safety of the miners

exemplified by his statement that he didn't even think to check the truck for the fire

extinguishers. Clearly, his concern was not for the safety of the miners but was focused on

uninterrupted production of stone. Respondent's claim that he was not aware of the violation,

that it existed for a short period of time and that it was promptly abated is not supported by 

36 FMSHRC Page 2427
the credible evidence of record. The importance of the fire extinguishers on a vehicle 

containing blasting materials is critical. Luxbacher ordered this truck to be jury rigged for 

blasting service. That he did not take it upon himself to make an inspection of the rig before 

it was used on October 8th to ensure it complied with all relevant safety standards is 

inexcusable. Monthly inspections for fire extinguishers are mandatory and he was aware that 

as of the last one this truck had only one onboard. Tr. 225. The danger posed by a fire in the 

presence of explosive materials is extremely high. Luxbacher stated that he found ANFO 

pellets in and around the pot when it was parked outside the lunchroom which is an area 

where smoking allowed. Clearly, Respondent was not enforcing the need to keep the truck 

clean. There is no doubt that the truck was still in service and was to be used in its present 

condition again on the night of October l0th. Lhoist did nothing to abate this condition. 

Ratliff s issuance of the violations is what caused the truck to be taken out of service. 

Abatement requires the operator take action to eliminate the hazard before the inspector 

discovers the violation. Enlow Fork Mining Co., 19 FMSHRC 5, 17 (Jan. 1997); Utah 

Power & Light Co., 11 FMSHRC 1926, 1933-34 (Oct. 1989).

Based upon a totality of the circumstances, I find that high negligence and 

unwarrantable failure to comply with the standard are appropriate. 

Order Number 8639934

The pickup truck lacked any warning signs that it contained explosive material, in

violation of 30 C.F.R. § 57.6202(a)(5), which requires such warning signs to be visible from

each approach. The narrative portion of the violation includes the statement that Luxbacher 

told employees that the signs were not necessary. The gravity is marked as reasonably likely 

to result in permanently disabling injuries to one miner, S&S and the result of high negligence 

and an unwarrantable failure to comply. Ex. S-13. The proposed penalty is $9,300.00. 

The Respondent admits the violation and I find the evidence supports such a finding. 

 S&S

During the blasting cycle, this truck was brought to the face to load ANFO. Once the

holes drilled in the face were filled with ANFO, the truck would be taken to the next face 

where it would perform the same task. At the end of the shift, it would be taken to the 15 East

sump area where the residual explosive material would be washed out. Tr. 39-41. As noted 

above, however, cleaning the truck properly was not done and it was found to have ANFO 

pellets around the tank when it was parked by the 14 East lunchroom where miners are 

permitted to smoke. Tr. 137-8. In Ratliffs opinion, there were sufficient ignition sources 

present from cigarettes to pieces of machinery, steel fittings and the tank which could produce 

a spark in the presence of the ANFO. All of the elements required for a fire were present. Tr.

145. Without the placards on the truck to identify its contents as explosive, miners would not 

be warned to keep burning materials away from it. ANFO is a lower class of explosive 

material making an ignition more likely to result in a fire rather than an explosion. Tr. 144. 

Because of this Ratliff opined that injuries to a miner would be burns. !d. Contributing to the 

36 FMSHRC Page 2428
I concur with Ratliff s opinion that under continued normal mining conditions it was

reasonably likely given the presence of fuel, air, and spark-producing items that a fire would

occur and injuries sustained would be very serious if not fatal. The S&S assessment has been

established. 

I find the gravity of this violation to be serious. 

Negligence/Unwarrantable Failure

I find this violation was the result of high negligence and unwarrantable failure for 

much the same reasons as in the previous violations. Management directed that the truck be 

rigged as a blasting rig performing the normal routine of carrying ANFO to the faces and 

then returning to the sump area for cleanup. Tr. 39-41. It had been in service for two shifts 

when Ratliff interceded preventing it from being used again on the next shift. Two shifts 

was far too long a time considering the grave danger posed by a fire fueled by explosive 

materials.

Luxbacher was fully aware that the blasting rig normally used for this task had 

reflective warning placards on all four sides. He was asked by a miner if the placards should 

be put on the pickup truck and he said it was not necessary. Tr. 148. He attempted to 

explain at hearing that he believed the ANFO would be loaded on the truck at the face where 

it would be parked behind the blast area sign. He later admitted, however, that he was aware 

the truck would move from face to face with ANFO onboard as well as to the cleanout area 

which would take it outside the blasting area. Tr. 225-6. He further testified that he 

considered the miner's question concerning the placards to be an "inquiry." He explained the 

difference between an inquiry and a complaint as follows, "Maybe the attention I give the 

matter, maybe give it a little more attention if it is a complaint." Tr. 225. I find his attempts 

to downplay the degree of negligence he exhibited underscores his reckless disregard for the 

miners' safety.

I find Luxbacher's assertions that he was unaware that the platform was unstable and

unsecured, that the tank was an air receiver necessitating a pressure gauge and relief valve, 

that the explosive materials warning signs were necessary, that the truck lacked a second fire 

extinguisher or that the straps around the tank and the tank itself were loose to be self-serving

and not credible. This is particularly egregious coming from an individual with a mine

engineering degree from Virginia Tech, a leading institute of higher learning. It is apparent 

that production was a far greater priority than safety for the miners. Management 

intentionally and knowingly violated each of the mandatory standards herein exhibiting an 

unconscionable indifference and complete disregard for its employees.

36 FMSHRC Page 2429

likelihood of such an accident was the exposure presented by having had this truck in service 

for three days. Tr. 143.
CIVIL PENALTIES

The Commission has reiterated in Mize Granite Quarries, Inc., 34 FMSHRC 1760, 

1763- 64 (Aug. 2012):

Section 11O(i) of the Mine Act grants the Commission the authority to 

assess all civil penalties provided under the Act. 30 U .S.C. § 820(i). It 

further directs that the Commission, in determining penalty amounts, shall 

consider:

The operator's history of previous violations, the appropriateness of such 

penalty to the size of the business of the operator charged, whether the 

operator was negligent, the effect on the operator's ability to continue in 

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

the person charged in attempting to achieve rapid compliance after 

notification of a violation.

30 U.S.C. § 820(i).

The Commission and its ALJs are not bound by the penalties proposed by the 

Secretary nor are they governed by MSHA' s Part 100 regulations, although substantial 

deviations from the proposed penalties must be explained using the section 11O(i) criteria. 

See Sellersburg Stone Co., 5 FMSHRC 287,293 (Mar. 1983). In addition to considering the 

110(i) criteria, the judge must provide a sufficient factual basis upon which the Commission 

can perform its review function. See Martin Co. Coal Corp., 28 FMSHRC 247 (May 2006).

The parties have stipulated that the proposed penalties will not affect the operator's

ability to continue in business. They have also stipulated that MSHA Proposed Assessment

Form 1000-179 attached to the Secretary's Petition accurately reflects the operator's size, 

total assessed violations for the 24 months preceding the month the citation and orders herein 

were issued and the number of inspection days for the same period. The gravity, negligence 

and unwarrantable failure to comply with the cited standards are stated within the analysis of 

each of the violations above. I have taken into account the deterrent effect of civil penalties in

comparison to the size of the operator and its overall resources in making this decision. See 

Sec y v. Thunder Basin Coal Co., 19 FMSHRC 1495, 1505 (Sept. 1997). 

36 FMSHRC Page 2430
ORDER

Lhoist is ORDERED to pay a total penalty of$44,040 within 30 days of the date of this 

order.6

/s/ Priscilla M. Rae

Priscilla M. Rae 

Administrative Law Judge

Distribution List:

Willow E. Fort, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, 

Ste. 230, Nashville, TN 37219-5321

Charles H. Morgan, Alston & Bird, LLP, One Atlantic Center, 1201 West Peachtree Street,

Atlanta, GA 30309-3424

6 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 2431

Having considered the six statutory criteria, I assess the following penalties: 

Citation No. 8639930 - $11,900.00

Order No. 8639931 -$4,440.00 

Order No. 8639932- $16,400.00

Order No. 8639933 - $2,000.00 (This is a single order in Docket No. VA 2013-169) 

Order No. 8639934- $9,300.00
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 

September 8, 2014 

SECRETARY OF LABOR, MSHA, 

 on behalf of KENNETH P. LEAR, JR., 

Complainant 

v. 

KENAMERICAN RESOURCES, INC., 

 Respondent 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. KENT 2014-708-D 

MADI-CD 2014-22 

Mine: Paradise #9 

Mine ID 15-17741 

DECISION

AND

ORDER OF TEMPORARY REINSTATEMENT

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for Complainant, 

R. Lance Witcher, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, PC, 

St. Louis, Missouri, for Respondent. 

Before: Judge Zielinski 

This matter is before me on an Application for Temporary Reinstatement filed by the 

Secretary of Labor on behalf of Kenneth P. Lear, Jr., pursuant to section 105(c)(2) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2). The application seeks an order 

requiring Respondent, Kenamerican Resources, Incorporated, to reinstate Lear as an employee, 

pending completion of a formal investigation and final order on the complaint of discrimination 

he has filed with the Secretary’s Mine Safety and Health Administration (“MSHA”). A hearing 

on the application was held in Madisonville, Kentucky, on August 29, 2014.1

 For the reasons set 

forth below, I grant the application and order Lear’s temporary reinstatement. 

1

 The hearing was held on the Friday before the Labor Day weekend and the transcript 

was not received until Tuesday, September 2, 2014, which left limited time within which to issue 

this decision within the time specified in Commission rules. 29 C.F.R. § 2700.45(e)(1). Under 

these circumstances, I deem it necessary to extend the time for issuance of the decision one work 

day. 

36 FMSHRC Page 2432
Findings of Fact and Conclusions of Law

Overview 

Kenamerican operates the Paradise #9 mine, a large underground coal mine, located in 

Muhlenberg County, Kentucky. Lear worked as a belt mechanic, performing maintenance and 

repairs on conveyor belts and repositioning belts as needed in the development of the mine. He 

worked the day shift, 7:00 a.m. to 3:00 p.m., and generally worked six days a week, Monday 

through Saturday. Miners that are scheduled to work are required to appear in time to dress and 

go underground and, if not, they are to call in to the mine’s dispatch office before their scheduled 

reporting time and report that they will be late or will not be working. If their absence is not 

excused, they receive an “occurrence” which can lead to disciplinary action. Under Kenamerican 

policy, as explained in its employee handbook, a miner who does not appear, or call in, for two 

successive days, is considered to have resigned. A miner who walks off the job is also 

considered to have resigned. 

Lear failed to call in or appear for his shift on Saturday, April 26, 2014. When he 

reported for work on Monday, April 28, he had a confrontation with Jeffery Todd Mackey, the 

belt coordinator. Lear claims that Mackey gave him a work assignment that would have created a 

hazardous condition, disruption of mine ventilation currents, which he refused to perform. 

Mackey then questioned him about his failure to appear on April 26. The exchange became 

heated, and Lear eventually left the mine and went home. He did not call in to the mine’s 

dispatcher or report for work on Tuesday, April 29, and did not call in on Wednesday, April 30. 

He came to the mine on the morning of April 30, spoke to Ron Winebarger, Kenamerican’s 

human resources manager, and was told that his employment had been terminated. 

On June 11, 2014, Lear went to MSHA’s District 10, Madisonville, Kentucky, field 

office and filed a complaint alleging that he had been discriminated against when he was 

discharged. He identified Mackey and Winebarger as the persons responsible for the 

discriminatory action, which was described in the complaint as follows: 

I had been instructed to work in unsafe conditions on numerous occasions, I 

finally told them no and lost my temper. We had heated words and I was later 

fired. I am requesting my job back and loss[sic] pay and benefits restored to me. 

The Secretary investigated the complaint and, on August 11, 2014, filed an Application 

for Temporary Reinstatement on Lear’s behalf. Kenamerican timely requested a hearing. 

The Witnesses 

Kenneth Lear 

Lear was the sole witness called by the Secretary. He had worked as a belt mechanic at 

the Paradise #9 mine for five years, and reported to his foreman, Jason Durham. One of the 

major tasks performed by belt mechanics was moving belt head drives to other locations in the 

mine. It is a lengthy process that requires breaking down, or disassembling, the major 

components of the drive, and using a scoop to transport or drag them to the new location. Most 

36 FMSHRC Page 2433

of the head drive moves were done by Lear and Durham on the day shift. 
Moving a belt head drive often required travel through locations served by different 

ventilation air currents, i.e., intake, neutral or return. Equipment moves between such areas 

involved passing through an airlock – two sets of doors that separated the different air flows. The 

approach set of doors would be opened, the equipment would be driven into the space between 

the doors, those doors would be closed, the second set of doors would be opened, and the 

equipment would be driven out into the new area. Lear testified that smaller parts of the head 

drive could be moved through the airlock successfully. However, the major component could 

not, because it was too large. The scoop would reach the second set of airlock doors before the 

towed piece of equipment cleared the first set of doors. Tr. 16. If both sets of doors were opened 

simultaneously, ventilation air currents would short circuit, disrupting ventilation to the working 

sections, exposing three crews of miners to respirable dust and potential accumulations of 

methane. James Nichols, a Kenamerican safety official, was present one day when Lear was 

about to open a second set of doors while the first set remained open. Nichols told him that “if 

you value your job, don’t open those doors.” Tr. 17. He added that, if he caught Lear opening 

both sets of doors, he would be fired. Tr. 17. 

Lear confirmed that there were alternative ways to move a belt head drive. It could be 

pushed into the airlock and pulled out by a different piece of equipment, or it could be dragged 

all the way out to the bottom mine entrance and then taken in through the intake airway. 

However, he had been told that he couldn’t drag the drive out and back in the intake, and that 

when he suggested pushing the drive into the airlock, was told that there was not enough 

manpower or equipment to do it that way. Tr. 41-42. He testified that, subsequent to the Nichols 

incident, he had moved drives through an airlock with both sets of doors open, while a foreman 

monitored the location of safety personnel with his “text pager” to assure that they were not in 

the area.2

 Tr. 42-43, 57. 

As noted above, miners in the belt department, including Lear, worked six days a week, 

Monday through Saturday. According to Lear, as an outby worker, he “couldn’t get a weekend 

off - couldn’t buy one.” Tr. 54. Occasionally, Lear and Durham worked out a “switch,” to allow 

them to take Saturday off, e.g., by doubling up a weekday shift, or working Sunday. Tr. 53-54. 

Lear had applied for and been approved to take vacation days on Thursday, April 24, 2014, and 

Friday, April 25, 2014. He was scheduled to work on Saturday, April 26, but did not report that 

day, and did not call in to advise that he would not be coming in. Tr. 39, 54. 

On Monday, April 28, Lear reported for work at his regular time, a little before 6:00 a.m. 

He encountered Mackey outside the bathhouse/office building. He testified that the confrontation 

began when Mackey instructed him to move a belt drive to the #1 unit. Tr. 14. Lear had broken 

the belt drive down the previous week. Tr. 41. Lear asked him which scoop to use, and Mackey 

replied “I don’t know, you figure it out.” Tr. 19. They had “other words,” and Lear told Mackey 

that “federal (an MSHA inspector) is underground, safety (Nichols) is underground, I can’t go 

2

 Underground miners are required to wear a disk-shaped electronic tag that allows their 

location in the mine to be tracked. Through use of a text pager the location of a particular person 

can be determined. Tr. 20-21. 

36 FMSHRC Page 2434
through them doors.” Tr. 19-20. Mackey told him to “look them up on your text pager, see where 

they’re at, and then go do your job.” Tr. 20. After Lear had made clear that he would not move 

the belt drive. Mackey asked him where he was on Saturday, when he was supposed to have 

worked. Lear, who was angry, responded that he was “at the f-ing house.” Tr. 21-22. Mackey 

pressed the issue, and Lear told him to do his job - “give me an [occurrence] and leave me 

alone.” Tr. 24. In the course of the exchange, Lear told Mackey that they could “settle it right 

here,” and that he would “kick [Mackey’s] midget m-f-ing ass.” He made numerous threats to 

get into a fight with Mackey. 

Tr. 36. 

Lear turned away, stepped into the section foremen’s office briefly, came back out and 

had another exchange with Mackey, who then left the area. While in the foremen’s office, Lear 

asked James Pendergraff, a shift foreman, if he had any work for him. Pendergraff told him he 

couldn’t give him anything, that he had to talk to Jeffrey Rideout, the production coordinator at 

the time. Tr. 24. Lear asked Rideout if he had work, and told him he wanted to leave the belt 

department. Rideout, who had heard part of the exchange between Lear and Mackey, responded 

that Lear couldn’t speak to management that way, and that he had nothing for him. Tr. 25. Lear 

went back outside and had a few more words with Mackey. Mackey and William Piper, another 

miner who was in the area, left the scene. Lear, who then had nothing to do, went to the locker 

room, talked briefly with some miners there, put up his tool belt and hard hat and went home. Tr. 

28. 

Lear described a heated exchange between he and Mackey, during which Mackey raised 

his voice, pointed a finger in his face and got in his face. However, he conceded that Mackey, 

who was a Baptist preacher, did not cuss or swear. Tr. 21, 35. Rather, he described Mackey as a 

“smartaleck” who had a condescending manner that aggravated him. “He treats you like your 

stupid when you’re working for him. He’s the smart one, you’re the dumb one, and you’re going 

to do what he says or you’re going to have a problem with Todd Mackey.” Tr. 53. 

Lear stated that there were two persons in the area of the confrontation, and that Rideout 

stuck his head out the door of the mine foremen’s office briefly. He also stated that Piper was 

present when Mackey and he discussed the work assignment. He denied that another miner, 

Jeffery Sullivan, who he considered a friend, was there, stating that he was in the bathhouse. 

Tr, 37. He spoke with Sullivan when he went to the locker room. Sullivan asked what he was 

doing and urged him not to leave. Lear replied that he was going home. Tr. 44. Lear denied 

telling Sullivan or Piper that he was quitting his job. Tr. 44. He also did not recall talking to 

Pendergraff more than once on the 28th, and did not believe that he told him that he’d had 

enough, and was quitting. Tr. 43. 

Lear did not report for work on Tuesday, April 29, and did not call in to the dispatch 

office to report that he would not be coming in. Tr. 45, 48, 50. Lear testified that he placed two 

calls to the mine on April 29, in an effort to speak to Winebarger. He was connected to 

Winebarger’s phone, but Winebarger did not answer. The calls were transferred to Winebarger’s 

voicemail, but Lear did not leave a message on either occasion. Tr. 28-29, 49. Lear did not 

report for his regular shift assignment on Wednesday, April 30, and did not call the dispatcher to 

so advise. Tr. 29, 48. He did travel to the mine on the morning of April 30, to speak to 

36 FMSHRC Page 2435
Winebarger. He wasn’t sure what time it was, but thought it may have been around the time his 

shift would have started. Tr. 50. As he was walking toward the office, he met Pendergraff, who 

told him not to take things out of his locker, that he would go with him to talk to Winebarger and 

try to save his job. Tr. 47. However, he stated that Pendergraff “went his way. I went mine.” Tr. 

47. When he spoke to Winebarger, he asked about his job, and indicated that he wanted another

assignment. Tr. 30. Winebarger told him that the mine superintendent had heard of the conflict 

and that Lear was to be fired. Tr. 30. Lear apologized for what happened, turned in his tools and 

safety equipment, took his property, and left the mine. Tr. 30-31. 

Lear later filed a claim for unemployment compensation. He testified that he told the 

State agency that the confrontation with Mackey was about his being absent on that Saturday. 

Tr. 52. However, he also stated that the work assignment was part of it, but, that the “referee” 

didn’t understand what an airlock door was, said that it didn’t pertain to their case, and that they 

didn’t want to hear what he had to say. Tr. 54. 

Jeffery Todd Mackey 

Mackey is the belt coordinator at Kenamerican, and has worked there for 10 years. The 

belt mechanics report to belt foremen, who report to him. If the belt foremen aren’t around, he 

tells the men what to do. The belt department works weekends, basically six days per week, 

including every Saturday. Lear was scheduled to work on Saturday, April 26, but did not appear 

and did not call in. Tr. 75. On Monday, April 28, he encountered Lear outside the 

bathhouse/section foremen’s office, greeted him, engaged him in general conversation, and 

asked him where he was on Saturday. Tr. 77. He was getting ready to do time sheets, and wanted 

to clarify Lear’s status on Saturday. He had not yet spoken to Durham, Lear’s belt foreman, and 

did not know whether Durham and Lear had worked out an alternative work schedule. Tr. 77-78. 

Lear got mad, and responded that he had “told you all a month ago that I ain’t working every 

Saturday.” Tr. 79. Mackey said, “OK, I need to know what to put on the time sheet,” and started 

walking toward his office. Lear went toward the bathhouse. When he reached the top step, he 

stated, “I don’t have to put up with this mess – I’ll tell you what, I can take care of this right now 

– I’ll stomp your midget [ass] right here.” Tr. 80. He went into the building for a minute, then

came back out and said, “Let’s take care of this right here. I ain’t puttin up with this. I’m tired of 

your f-ing mouth.” Tr. 80. Mackey asked him “what’s wrong with you?” Lear replied that he 

“ain’t putting up with this,” and went into the bathhouse. Tr. 80. Mackey stated that he did not 

give a work assignment to Lear, and had not gotten to that part of his job yet. Tr. 77, 82. He did 

his time sheet, and prepared to go underground. 

Two miners, Sullivan and Piper came up to him and said, “You need to talk to Kenny – 

he’s quitting.” He replied that he couldn’t help that, Lear was grown man, and he couldn’t stop 

him. Tr. 82-83. Mackey denied raising his voice during his interaction with Lear, and professed 

that he was upset at losing him, because he was “probably the best belt man I had.” Tr. 87. He 

had seen Lear get angry before, with other miners, and express frustration with work. He usually 

got over it pretty quick, and Mackey had been able to talk him out of leaving. Tr. 94-95. 

Mackey confirmed that Nichols had caught Lear in the process of opening both sets of 

doors of an airlock. He also confirmed that opening both sets of doors would probably disrupt 

36 FMSHRC Page 2436
the mine’s ventilation system. Tr. 84-85. He denied holding airlock doors open while equipment 

was driven through, or ordering miners to do so. Tr. 85-86. Mackey testified that, if the head 

drive was broken down properly, all of the components could be moved through an airlock with 

a scoop, without requiring that both sets of doors be opened at the same time. He also explained 

that there were alternative means to move a head drive, it could be pushed into the airlock, and 

then pulled out the other side by a different piece of equipment. It could also be dragged out to 

the bottom entrance of the mine and back in the intake air current. Tr. 85-86, 92. 

Jeffery Sullivan 

Sullivan is a belt mechanic who worked for Mackey. He likes Lear “very much” and 

considers him a friend. Tr. 59-60. He noticed something going on outside the bathhouse between 

Lear and Mackey, and walked up to observe. Tr. 64-65. When he was about 10 feet away, he 

heard Mackey ask Lear where he was on Saturday. Lear said he wasn’t working every Saturday, 

and he was tired of it. Lear asked Rideout if he had another job for him, and Rideout said he 

didn’t. Lear then stated, “If they ain’t got nothing else better for me to do, I don’t want to be 

here.” Tr. 60. While he wasn’t sure of the exact words, he recalled that Lear told Rideout, “I 

quit,” after he said he didn’t have any work for him. Tr. 61. He had some conversation with Lear, 

along the line that he hated to see him go, but did not recall what was said. Tr. 62. He did not see 

Mackey get into Lear’s face or stick a finger in his face, and has never witnessed Mackey yelling 

or cursing at employees, pointing fingers in their faces or getting into their faces. Tr. 62. He did 

not overhear any discussion between Lear and Mackey about job assignments. Tr. 61-62. 

James Pendergraff 

Pendergraff is a shift foreman, who has worked at Kenamerican for over 19 years. He 

testified that he did not witness the confrontation between Lear and Mackey on April 28. He saw 

Lear walking toward the parking lot. He was surprised, because he had already checked Lear in 

as a person working underground that day, and asked him, “What are you doing?” Tr. 109-10. 

Lear responded, “I’ve had enough. I quit. I’m out of here. I quit.” Tr. 111. Pendergraff did not 

respond, and Lear left the mine site. He denied talking with Lear earlier on the 28th, or that Lear 

asked him if he had another job he could do. Tr. 112.. 

Jeffrey Rideout 

Rideout, has worked at Kenamerican for eight years, and was its production coordinator 

at the time. He was in the section foremen’s office on the morning of the 28th, and heard 

“clamoring” going on, “arguing back and forth.” Tr. 67. Lear came in, abruptly turned, and went 

back out. As he turned, he said, “I’ll tell you what I can do. I can kick your midget f-ing ass.” Tr. 

67. The words were directed at Mackey, and it appeared that he was trying to initiate a fight. Tr.

68. Mackey was outside. He replied, “What, Bud, what are you upset about?” Tr. 68. Mackey did

not seem to be upset, and his voice was not raised compared to Lear’s. Tr. 70. Rideout thought 

things were calming down. Lear came into the office a little later, and said to Rideout, “Do you 

have anything for me? I can’t work for that m-f-er.” Rideout responded, “No, Kenny, you cannot 

talk to a manager at this coal mines like that. And, no, I don’t have anything for you.” Tr. 69. 

Rideout went about his business, and had no further involvement. 

36 FMSHRC Page 2437
Ronald Winebarger 

Winebarger is Kenamerican’s human resources manager. He generally comes into work 

early, and walks around outside the bathhouse/office area, in an effort to make himself available 

to the men. Tr. 101. He did not witness the April 28th confrontation between Lear and Mackey. 

He explained that under Kenamerican’s policy, as explained in its employee handbook, a person 

who walks off the job is considered to have resigned. In addition, a person who fails for two 

consecutive days to report for work, or call in to the mine’s dispatcher prior to the start of his 

shift, is considered to have resigned. Tr. 98-99. He was at work on April 29. There are a number 

of ways for callers to leave messages for him, including voicemail and paper notes recorded by 

office staff. Callers can also obtain his cell phone number from the dispatch office. He was not 

aware of any attempts by Lear to call him, or leave a message, on April 29. 

At the beginning of the day on Wednesday, May 30, Winebarger contacted 

Kenamerican’s corporate office and advised that Lear was “terminated.” Tr. 107. “Because he 

was a second day no call, no show. So I immediately - - e-mailed the corporate people and told 

them that he was no longer employed, he had resigned his position.” Tr. 107. Lear came to his 

office about 8:00 a.m. Winebarger had not seen Lear at the mine earlier that day. Tr. 101. Lear 

said. “Well, I guess I’ve messed up, haven’t I?” Winebarger replied, “Yeah, Kenny, you know 

you messed up.” He said, “Well, I just wanted to see what I could do as far as, you know, maybe 

going back to work.” Winebarger said, “Well, Kenny, you resigned your job. I mean, you walked 

off the job. You quit.” Tr. 101. Lear “sort of acknowledged” that with his body language. 

Winebarger asked why Lear waited until Wednesday to come in, and he replied that he was “too 

mad” and needed “time to cool down.” Tr. 102. 

The Applicable Law

Section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), provides, in pertinent part, that the 

Secretary shall investigate a discrimination complaint “and if the Secretary finds that such 

complaint was not frivolously brought, the Commission, on an expedited basis upon application 

of the Secretary, shall order the immediate reinstatement of the miner pending final order on the 

complaint.” The Commission has established a procedure for making this determination. 

Commission Procedural Rule 45(d), 29 C.F.R. § 2700.45(d), states: 

The scope of a hearing on an application for temporary reinstatement is limited to 

a determination as to whether the miner’s complaint was frivolously brought. The 

burden of proof shall be upon the Secretary to establish that the complaint was not 

frivolously brought. In support of his application for temporary reinstatement, the 

Secretary may limit his presentation to the testimony of the complainant. The 

respondent shall have an opportunity to cross-examine any witnesses called by 

the Secretary and may present testimony and documentary evidence in support of 

its position that the complaint was frivolously brought. 

“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.” Sec’y of 

Labor on behalf of Price v. Jim Walter Resources, Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), 

36 FMSHRC Page 2438

aff’d, 920 F.2d 738 (11th Cir. 1990). 
In adopting section 105(c), Congress indicated that a complaint is not frivolously 

brought, if it “appears 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). 

The “not frivolously brought” standard has been equated to the “reasonable cause to believe” 

standard applicable in other contexts. Jim Walter Resources, Inc., 920 F.2d at 747; Sec’y of 

Labor on behalf of Bussanich v. Centralia Mining Company, 22 FMSHRC 153, 157 (Feb. 2000). 

While an applicant for temporary reinstatement need not prove a prima facie case of 

discrimination, it is useful to review the elements of a discrimination claim in order to assess 

whether the evidence at this stage of the proceedings meets the non-frivolous test. In order to 

establish a prima facie case of discrimination under Section 105(c) of the Act, a complaining 

miner bears the burden of establishing (1) that he engaged in protected activity; (2) that he 

suffered adverse action; and (3) that the adverse action complained of was motivated in any part 

by that activity. Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 

(Oct. 1980), rev'd on other grounds,663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981). 

Protected Activity 

A miner’s ability to complain about safety issues is a fundamental right afforded and 

protected by the Act. Complaints made to an operator or its agent of “an alleged danger or safety 

or health violation,” is specifically described as protected activity in section 105(c)(1) of the Act. 

30 U.S.C. § 815(c)(1). In addition, the Commission and the courts have recognized that, 

although not explicitly stated in the Act, a miner’s refusal to work in conditions that he 

reasonably believes in good faith to be hazardous is also activity protected under the Act. See 

Bryce Dolan, 22 FMSHRC 171, 176-77 (Feb. 2000), and cases cited therein. 

The Secretary presented evidence, testimony by Lear, that he refused to perform an 

assigned task that he believed would have created a hazardous condition, i.e., disruption of 

ventilation on the working sections which would have exposed three crews of miners to 

excessive dust and the potential accumulation of methane. There does not appear to be a dispute 

that opening both sets of airlock doors at the same time would disrupt ventilation of the mine. 

While there is a dispute as to whether it was necessary to simultaneously open both sets of doors 

to move the belt head drive through the airlock, Mackey confirmed that there had been a prior 

incident where the safety department had taken issue with Lear’s attempt to do so. There was 

also evidence, through Lear, that simultaneous opening of both sets of airlock doors was not an 

infrequent practice associated with movement of belt head drives. 

There is a direct conflict in the evidence as to whether or not Lear was given an 

assignment to move the head drive, prompting his concerns about safety and his exposure to 

possible disciplinary action. Lear testified that he was given the assignment, and Mackey 

testified that no such assignment was given. Other witnesses to portions of their exchange did 

not hear a discussion of work assignments. However, those witnesses did not claim to have 

36 FMSHRC Page 2439
witnessed the entire encounter. Lear identified one individual who he claimed was present when 

the work assignment was given. However, that person was not called as a witness. Whether or 

not he had been interviewed in MSHA’s preliminary investigation of Lear’s complaint is 

unknown. 

It is well-established that the purpose of a temporary reinstatement proceeding is to 

determine whether the evidence presented by the Secretary establishes that the complaint is not 

frivolous, not to determine “whether there is sufficient evidence of discrimination to justify 

permanent reinstatement.” Jim Walter Resources, Inc., 920 F.2d at 744. “It is ‘not 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 of Labor on behalf of Williamson v. CAM Mining, LLC., 31 FMSHRC 

1085, 1088 (Oct. 2009) (quoting Sec’y of Labor on behalf of Albu v. Chicopee Coal Co., 

21 FMSHRC 717, 719 (July 1999). See also Sec’y of Labor on behalf of Billings v. Proppant 

Specialists, LLC, 33 FMSHRC 2383, 2385 (Oct. 2011) (resolving conflicts in the testimony, and 

making credibility determinations in evaluating the Secretary’s prima facie case, are simply not 

appropriate at this stage in the proceeding). 

The Secretary presented evidence that Lear engaged in protected activity. That evidence 

is sufficient to establish that this element of Lear’s discrimination complaint is not frivolous. 

Resolving the testimonial conflict in this proceeding would be inappropriate and contrary to 

established precedent, which counsel for Kenamerican recognized at the close of the hearing. 

Tr. 118. 

Adverse Action 

Kenamerican contends that it is clear that Lear resigned, that there is no colorable claim 

that he was discharged, and that temporary reinstatement must be denied, citing Sec’y of Labor 

on behalf of Bussanich v. Centralia Mining Co., 22 FMSHRC 153 (Feb. 2000). Whether 

Bussanich had quit, or had been terminated was hotly contested. However, Bussanich had done 

several things subsequent to his departure that were consistent with his having quit his job. He 

deposited his final pay and vacation pay checks; voluntarily participated in a telephonic exit 

interview; made several calls about obtaining the proceeds of his 401(k) account; signed and 

returned an exit interview check list without protest; and accepted the proceeds of his 401(k) 

account which he needed to satisfy outstanding business obligations. On the “unusual facts” of 

that case, three Commissioners affirmed the ALJ’s determination that there was no colorable 

claim that Bussanich had been discharged, i.e., that he had suffered adverse action. Two 

Commissioners dissented, believing that evidentiary conflicts on that issue should not have been 

resolved at the temporary reinstatement stage of proceedings. As discussed below, the facts of 

this case are significantly different than those in Bussanich. 

It is not entirely clear how or why Lear’s employment with Kenamerican was terminated. 

Lear testified that Winebarger told him that the mine superintendent had heard about the 

“conflict” and directed that he be terminated. It would not be unusual for a miner who admittedly 

cursed and threatened a supervisor to be discharged. While Winebarger did not assert that Lear 

was discharged for disciplinary reasons, there were no employment records introduced that 

purported to specify the reason that Lear’s employment ended. If Lear was discharged, a host of 

36 FMSHRC Page 2440
issues might have to be explored, including, whether his conduct was provoked by his being 

directed to perform an unsafe work assignment, and whether his discharge was consistent with 

company policy and treatment of other similarly situated employees. See Sec’y of Labor on 

behalf of Bernardyn v. Reading Anthracite Co., 23 FMSHRC 924 (Sept. 2001). 

Winebarger testified that Lear had been terminated by the time he saw him around 8:00 

a.m. on Wednesday, April 30, because, pursuant to the two-day, no call, no show policy, he was 

considered to have resigned. Lear had not reported for work or timely called in to the dispatch 

office on Tuesday, the 29th, although he did claim to have placed two calls to Winebarger’s 

office. He did not call the dispatcher’s office prior to the start of his shift on April 30. He came 

to the mine that morning, but wasn’t sure of the time. Winebarger did not see him until about 

8:00 a.m., one hour after his shift would have started. There was no evidence as to how strictly 

Kenamerican’s aforementioned policy has been applied, or whether its application to Lear was 

consistent with past practice.3

 

When Winebarger explained to Lear why he was no longer employed, his primary 

reference was to the other prong of Kenamerican’s “assumed resignation” policy, i.e., that Lear 

had resigned because he had “walked off the job. You quit.” Tr. 101. Winebarger did not explain 

why, if Lear’s employment had been terminated for that reason, he waited two days, until April 

30, to “immediately” contact the corporate office. Lear left the mine site on Monday, 

April 28, and there is no evidence that Kenamerican took any action that indicated that Lear was 

considered to have resigned as of that time. If so, issues of constructive discharge and 

provocation might have to be addressed. 

Lear is alleged to have told several people that he “quit.” He denied using that term, and 

his actions were arguably inconsistent with an intention to quit. When he left, angrily, on April 

28, he returned his tools and other equipment to his locker. He did not return his tools and 

personal protective equipment to Kenamerican or remove his personal property until after 

speaking with Winebarger on April 30. His appearance at Winebarger’s office to inquire about 

his job status and see if he could get a different assignment was also arguably inconsistent with 

an intention to quit, although it could also be construed as evidencing a change of heart. 

As with Lear’s claim of having engaged in protected activity, there is conflicting 

evidence on whether he voluntarily left his job, or whether his employment was terminated 

against his wishes. The evidence establishes a colorable issue that Lear suffered adverse action. 

Nexus Between Protected Activity and Adverse Action 

The Commission has frequently acknowledged that it is very difficult to establish “a 

motivational nexus between protected activity and the adverse action that is the subject of the 

complaint.” Sec’y of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept. 

1999). Consequently, the Commission has held that “(1) knowledge of the protected activity; 

3

 In Bussanich, the ALJ also considered whether Centralia discriminatorily failed to

rehire the miner who had quit his job. Winebarger testified that Kenamerican can rehire miners

who have resigned. It does not appear that such an option was discussed with Lear. 

36 FMSHRC Page 2441
(2) hostility or animus towards the protected activity; and (3) coincidence in time between the 

protected activity and the adverse action” are all circumstantial indications of discriminatory 

intent. Id. 

Here, the alleged adverse action, whether it was discharge, constructive discharge, or 

termination, closely followed Lear’s claimed protected activity. There is a more than ample 

nexus between the claimed protected activity and the adverse action to raise a colorable issue 

that it was motivated, at least in part, by the protected activity. 

Conclusion 

Every element of Lear’s discrimination complaint is contested by Kenamerican. It 

introduced substantial evidence that Lear did not engage in protected activity, that he did not 

suffer adverse action, and that his employment was terminated for a legitimate 

non-discriminatory reason. It may eventually prevail on any or all of those issues. At this stage 

of the proceedings, however, they cannot be finally resolved. 

The legislative history of the Mine Act indicates that section 105(c)’s prohibition against 

discrimination is to be construed expansively to assure that miners will not be inhibited in any 

way in exercising any rights afforded by the legislation, and that Congress clearly intended that 

employers should bear a proportionately greater burden of the risk of an erroneous decision in a 

temporary reinstatement proceeding. Congress intended that the benefit of the doubt 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 Rodriguez v. C.R. Meyer and Sons 

Company, 35 FMSHRC 811, 814 (Apr. 2013), citing Jim Walter Resources, 920 F.2d at 748, 

n.11. 

The U.S. Court of Appeals for the Eleventh Circuit has described the test for whether the 

Secretary has established that a claim of discrimination was not frivolous as follows: 

 If the evidence produced by the Secretary viewed in the light 

most favorable to the claimants, together with all inferences that 

can be made in favor of claimants, would reasonably support a 

finding that claimants had established a prima facie case, the claim 

cannot be said to be frivolous. 

Drummond Company, Inc. v. FMSHRC and Secretary of Labor on behalf of Owens, (11th 

Circuit No. 02-14394, May 9, 2003) (unpublished opinion at 6). 

The temporary reinstatement provision of the Mine Act is heavily weighted in favor of 

the miner, who can be restored to his job, often in areas where employment opportunities are 

limited, pending the investigation and resolution of his discrimination complaint. If the Secretary 

determines that the claim lacks merit, an order of temporary reinstatement is promptly vacated. If 

the Secretary determines to pursue a formal complaint of discrimination before the Commission, 

the “temporary” relief could extend for years while the discrimination case proceeds through 

36 FMSHRC Page 2442
decision at the ALJ level, and potential appeals to the Commission and/or the courts.4

Here the protected activity claimed by Lear, his refusal to perform a task that would have 

resulted in a hazardous condition, is supported only by his testimony. Substantial evidence, 

testimony by other witnesses, and excerpts from records of the proceedings on his 

unemployment compensation claim, weigh against his testimony. There may be, as in Bussanich, 

cases where a claimant’s testimony may not be sufficient to establish that the claim is not 

frivolous. Here, there are “loose ends” that justify granting of the application, although arguably 

not by a wide margin. Completion of the Secretary’s investigation of the complaint should 

clarify areas of ambiguity and allow an informed determination of whether to initiate a formal 

claim of discrimination on Lear’s behalf. Under section 105(c)(3) of the Act, the Secretary’s 

determination is to be made on or before September 9, 2014. 

I find that the Secretary has established that Lear’s claim of discrimination is not 

frivolous. 

ORDER

The Application for Temporary Reinstatement is GRANTED. Kenamerican Resources, 

Inc., is ORDERED to reinstate Lear to the position that he held prior to April 30, 2014, or to a 

similar position, at the same rate of pay and benefits, IMMEDIATELY ON RECEIPT OF 

THIS DECISION. 

/s/ Michael E. Zielinski

Michael E. Zielinski 

 Senior Administrative Law Judge 

Distribution (Certified and electronic Mail): 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37215 

Kenneth P. Lear, Jr., 235 Bruce Lane, Breman, KY 42325 

R. Lance Witcher, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, PC, 7700 Bonhomme 

Avenue, Suite 650, St. Louis, MO 63105 

4

 See, e.g., Sec’y of Labor on behalf of Williamson v. CAM Mining, LLC, 31 FMSHRC 

1187 (Sept. 2009) (ALJ) (Application for Temporary Reinstatement denied); rev’d temporary 

reinstatement ordered, 31 FMSHRC 1085 (Oct. 2009); Sec’y of Labor on behalf of Williamson 

v. CAM Mining, LLC, 33 FMSHRC 1980 (Aug. 2011) (ALJ) (Complaint of Discrimination

dismissed). 

36 FMSHRC Page 2443
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 

September 8, 2014 

DECISION AND ORDER

Appearances: Yasmin K. Yanthis-Bailey, Esq. U.S. Department of Labor, Office of 

the Solicitor, Atlanta, GA, for the Petitioner

Jeff Pickett, New London, NC, for the Respondent

Before: Judge Rae

This case is before me upon a petition for assessment of a civil penalty under section

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d) (the Mine 

Act). The Respondent was issued a single citation for an alleged violation of30 C.F.R. § 

56.14107(a) for failure to guard the fan blades and alternator drive belt on a Ford tractor that 

was allegedly parked on a mine access road. The Secretary of Labor proposed a penalty of 

$121. A hearing was held in Charlotte, North Carolina on May 6, 2014. The parties submitted 

post-hearing briefs, which I have considered in rendering this decision. 

For the reasons set forth below, I find that the Mine Safety and Health Administration

(MSHA) lacks jurisdiction over the cited Ford tractor, and accordingly I vacate the citation. 

Summary of Evidence and Findings of Fact 

Jeff and Tina Pickett operate a recreational campground and "pan for gold" business

called Cotton Patch Gold Mine on a piece of property in New London, North Carolina. Tr. 5.

On the same piece of property, Mr. Pickett runs a commercial gold mining business called

Pickett Mining Group. Tr. 5. Pickett Mining Group employs several miners and has operated 

a single open-pit gold mine on the New London property since about 2008. Tr. 75, 86. The 

mine formerly was active about three or four months out of the year, but apparently the 

commercial pit is now abandoned. Tr. 50, 84-5.

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v. 

PICKETT MINING GROUP, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 2012-101-M 

A.C. No. 31-02224-270791

Mine: Pickett Mining Group

36 FMSHRC Page 2444
The parties do not dispute that Pickett Mining Group is covered under the Mine Act.

MSHA regularly inspects Pickett Mining Group's worksite, which includes the commercial 

pit, the mill site, an explosives magazine, and half of a fuel shed that is shared between 

Pickett Mining Group and Cotton Patch. By contrast, MSHA does not claim jurisdiction 

over Cotton Patch or over any part of the recreational side of the New London property. Tr. 

18.

The Citation

On September 14, 2011, MSHA Inspector Cecil W. Worrell, Jr.1 conducted a regular

inspection of Pickett Mining Group's mine. Tr. 9-10; Ex. S-1. The mine was idle on the day 

of the inspection. Tr. 10, 13. The only employee present when Worrell arrived was Ronnie 

Crook, who identified himself as the lead man and plant operator who was in charge of the 

mine when Mr. Pickett was away. Tr. 10, 26-7. Mr. Pickett later arrived at the mine site to 

join the inspection party, which also included Inspector David Nichols ofMSHA's Staunton, 

Virginia field office.2 Tr. 11.

During the inspection, Worrell observed a "Ford 8N tractor" with unguarded fan 

blades and an unguarded alternator drive belt sitting on a road on the New London property 

near the explosives magazine, where Crook had parked it. Tr. 12-14; Exs. S-1, S-3. A bush 

hog mower was attached to the tractor. Tr. 17. Inspector Worrell believed that the tractor, 

which was "rather an old model" without an automatic shutoff mechanism, presented a lossof-limb hazard to any miner who might come into contact with the unguarded moving parts. 

Tr. 12. Worrell interviewed Crook about the tractor, took photographs of the unguarded 

tractor parts, and issued Citation No. 8640280. Tr. 12; Ex. S-1; Photographs S-4, S-5, S-6. 

The citation alleges a violation of30 C.F.R. § 56.14107(a) for failure to properly guard 

moving machine parts. Ex. S-1. After Worrell issued the citation, the tractor was tagged out 

of service. Ex. S-2.

MSHA Inspector Danny R. Ellis,3 who had inspected Pickett Mining Group several 

times in the past, terminated the citation about eighteen months later on April 3, 2013 after 

observing that the tractor "had been removed from mine property." Tr. 32; Ex. S-7. The bush 

hog mower was still attached to the tractor and the fan blades and belt drives were still 

1

 Worrell testified he has worked out of MSHA' s Sanford, North Carolina office as a 

mine safety and health inspector for about six years. Previously, he worked for Arrow 

Products for nine years, spending his last five years there as a safety director and quality 

control manager. He attended the Miner Safety and Health Academy in Beckley, West 

Virginia to receive his training to become a mine inspector. His area of expertise is 

impoundments. Tr. 8-9. 

2

 Worrell testified that Nichols accompanied him to the mine site because they had 

heard a rumor that Pickett Mining Group had opened a shaft underground. This rumor proved 

to be unfounded. Tr. 11, 23. 

3 Ellis has worked as a federal mine inspector for 22 years and has worked out of 

MSHA' s Sanford, North Carolina office since 2008. Tr. 30-1.

36 FMSHRC Page 2445
unguarded. Tr. 32; Ex. S-7. Inspector Ellis was told the tractor had been towed from its 

former location, but at the hearing he could not recall how far the tractor had been moved. Tr. 

32, 34. 

Use of the Cited Tractor

When he was interviewed during the inspection, Ronnie Crook averred that he uses 

the cited Ford tractor to mow grass on the recreational side of the New London propertyi.e., the portion of the property used by Cotton Patch campground, not the MSHA-regulated 

portion. Tr. 17, 25; Ex. S-3. Mrs. Pickett testified that Crook works for her on the 

recreational side of the property on the weekends. Tr. 57-9. She indicated the Ford tractor 

is used exclusively to mow the lawn at Cotton Patch, and to her knowledge it has never been 

used without the bush hog mower attached. Tr. 59-61. The tractor is sometimes parked on 

the recreational side of the property during the summer and the rainy seasons, but when the 

grass does not need to be mowed frequently, it is parked on the non-public side of the 

property in the general area where the citation was issued. Tr. 73-4.

Mr. Pickett testified the tractor has never been used to haul equipment on mine 

property. Tr. 84. He testified that the bush hog mower has been attached to the tractor for so 

long, it might not be possible to remove it. Tr. 37, 75. He asserted there is no grass and 

therefore no use for the tractor and bush hog on the MSHA-regulated portions of the New 

London property. Tr. 77-8. He cited photographs of the New London property in support of 

his assertions.4 Pictures labeled "mill area" show a gravel-strewn clearing in the woods 

accessible by a gravel and dirt road and containing a rock crusher, springers, conveyors, a 

storage shelter, and other equipment. Some sparse weedy undergrowth is visible in this area, 

but no grass. Photographs R-1 to R-5; Tr. 41-2, 51-2.

The Secretary does not dispute that the Ford tractor is primarily used to mow the 

grass for Cotton Patch. The narrative portion of the citation alleges that the tractor is used 

by "[o]ne miner... as needed" for "mowing purposes." Ex. S-1. Inspector Worrell 

acknowledged at hearing that he would not consider Crook a "miner" when he is on the 

recreational side of the New London property, but indicated he would begin considering 

Crook a mine employee as soon as he drove the tractor onto mine property. Tr. 25-7. 

Worrell further acknowledged that the tractor was not in such a state that it could have been 

used for mining purposes on the day he issued the citation, as Pickett Mining Group would 

have had no use at its mine for the attached bush hog mower. Tr. 17. However, he felt that 

the bush hog could be easily removed and that the tractor could be used to pull stones or 

equipment if the bush hog were no longer attached. Tr. 18. "I didn't see [the tractor] used 

that way, and I don't know if it would be used that way," he testified, "[b]ut it could be used 

that way." Tr. 18 (emphasis added). However, he later conceded he had no reason except 

the tractor's location to believe the tractor was ever used on mine property. Tr. 25.

                                                            4 Mr. Pickett labeled each photograph with a date and location, marked where each 

was taken on a copy of his hand-drawn map, and numbered them 1 through 14. In this 

decision, the photographs will be referred to as Photographs R-1 to R-14.

36 FMSHRC Page 2446
Inspector Ellis also offered his opinion at the hearing on potential uses of the cited

tractor. Like Inspector Worrell, he did not believe the tractor could be used for mining

operations with the bush hog attached. Tr. 35. However, he testified that a bush hog is 

easily removed and opined that the cited tractor could be used to haul mining equipment and 

supplies if the bush hog were removed. Tr. 35-6. He also testified that the tractor had been 

"used" such that it fell under the jurisdiction of the Mine Act because it had been driven on 

mine property. Tr. 36-37. On cross-examination, Ellis conceded that he had no special 

knowledge of how difficult it would be to remove a bush hog from that particular model 

of tractor, which is a 1942 Model N Ford and an antique, according to Mr. Pickett. Tr. 

7, 37. Ellis further conceded that, considering Pickett Mining Group's overall safety 

record,5 he did not believe the operator would actually use a piece of equipment like the 

cited tractor for mining. Tr. 38.

Location of the Cited Tractor and Layout of the New London Property

At the hearing, Inspector Worrell indicated that his sole ground for asserting 

jurisdiction over the cited tractor was his belief that the tractor was parked on mine 

property. Tr. 25. His handwritten notes from the inspection explain his rationale:

This tractor is used to mow the recreation area. However it was in the mine

parked alongside the pit access road near the magazine ... The rear pit access road 

is used to access the pit as well as the magazine. Miner has parked this machine

here. Miner could suffer loss of limb type injury due to this condition ... Ronnie

Crook stated he thought this machine was exempt as it's used for recreation.

However, it was parked in the mine along side the mine road.

Ex. S-3. At the hearing, Worrell testified he could see no reason a dual-usage machine 

would be parked where the tractor had been located, because the access road where it 

was parked led to the pit and magazine. Tr. 14. Thus, he apparently believed that the 

sole purpose of that road was to provide access to the MSHA-regulated pit and 

magazine. On cross-examination, when questioned as to whether he remembered the 

access road being used for other purposes, he testified he was unfamiliar with any dualpurpose usage of that road; did not recall a path to the creek branching off of it; and did 

not recall seeing lumber, railroad ties, trailers, or equipment stored on the side of the 

road. Tr. 50, 52-5.

When Inspector Ellis conducted an unrelated inspection of the Pickett Mining 

Group mine in March 2012, about six months after Worrell had issued the citation at 

issue here, Ellis observed the cited tractor parked in the exact same place it had been 

when the citation was issued. Tr. 32-3. He opined the tractor was on mine property at 

that time because it was between the plant and the pit. Tr. 33. Like Inspector Worrell, he 

saw no reason for anyone other than a miner to come to that location because he "saw no 

5 Inspectors Worrell and Ellis both testified that on a scale of zero to 100, with 

100 representing 100% compliance with safety standards, Pickett Mining Group's safety 

rating is about 90. Tr. 24,37-8.

36 FMSHRC Page 2447

other activity that could occur in that area." Tr. 33-4.
Mr. Pickett does not dispute that at the time the citation issued, the cited tractor 

was parked near the explosives magazine on the side of the access road that runs 

between the pit and mill. However, he characterizes the access road as a dual-purpose 

road and the area where the tractor was parked as the main storage area for the entire 

New London property. Tr. 69-70, 72. At the hearing, he explained that the access road 

"cuts across the piece of property, and we use both sides of the property for recreational 

and personal storage." Tr. 79. He testified that non- miners are not allowed in the pit 

and mill areas, but non-miners and employees of the recreational side access the area 

where the tractor was cited all the time in order to move supplies and equipment to and from 

the storage area. Tr. 75-6, 81-2.

There are two distinct areas of the New London property, as shown in the handdrawn map introduced by Mr. Pickett. One is the publicly accessible recreation area and the 

other is the non-public area. The recreation area includes Cotton Patch's campground and 

recreational mining pit, along with a public path to the creek. The non-public area is a 

wooded area at the back of the property with an access road running through it. Map, Ex. R1.

The fuel shed is the first structure a person walking down the road would encounter 

when crossing onto the non-public side ofthe property. Ex. R-1. The fuel shed is used by 

both Cotton Patch and Pickett Mining Group. Ex. R-1; Tr. 24, 40. A bam, which is used for 

storage, is located in the same clearing as the fuel shed. Photograph R-9. MSHA apparently 

considers these two structures to mark the outer boundary of the mine area, with everything 

beyond them on the non-public side of the property constituting mine property.6 This would 

include Pickett Mining Group's commercial pit, a storage area, an explosives magazine, a 

path to the creek labeled "upper road to creek area," Pickett Mining Group's milling site, and 

the access road itself, which eventually loops back onto the recreational side of the property. 

Ex. R-1.

As noted, at the time the Ford tractor was cited, it was parked along the access road 

near where the storage area and magazine are located. Ex. R-1; Ex. S-3; Tr. 41, 52. The 

storage area and magazine are in the woods alongside the access road, on the same side of 

the road as the commercial pit. Ex. R-1; see Photograph R-10 (showing the magazine is just 

at the edge of the storage area). The magazine is an MSHA-regulated facility used exclusively 

by Pickett Mining Group. Tr. 41, 80, 87-8. However, the storage area is not. As seen in 

pictures introduced by Mr. Pickett, the storage area consists of a section of woods where 

machinery is parked on the side of the road and equipment and supplies are piled up in the 

6 Inspector Worrell testified he considered everything on the New London property 

"[b]eyond the fuel shed where there's now an abandoned pit" to be mine property. Tr. 50. 

Inspector Ellis testified that the mine area included everything on the left side of the road in 

Photograph R-6 (which would include the pit, storage area, magazine, and, further down the 

road, the upper creek path and mill area). Tr. 42; Ex. R-1.

36 FMSHRC Page 2448
woods beside the road. For example, one picture shows a flatbed truck and backhoe parked 

just off the road at the storage area with boxes, equipment, and tarp-covered piles of supplies 

visible in the woods beyond. Photograph R-6 (taken in May 2014). Other pictures show 

various equipment and supplies sitting in the woods at the storage area, including a dumpstersized blue storage bin, piles of lumber and rail ties, and pallets of building materials. 

Photographs R-7, R-8, R-11 to R-14 (taken in September 2012 and May 2014). Mrs. Pickett 

testified the lumber and other items had been stored at that location since she and her 

husband moved to the New London property, and the storage trailers seen next to the bam in 

Photograph R-9 used to be parked there as well. Tr. 64-5. Mr. Pickett indicated that the items 

and equipment kept in the storage area are used on either or both sides of the property. For 

example, the backhoe is used on the recreational side of the property and the railroad ties are 

used to build barrier walls on both the recreational and MSHA-regulated sides of the 

property. Tr. 40, 53. Mr. Pickett testified that the equipment and trailers in the storage area 

have been there for years and have always been moved back and forth between the 

recreational and commercial sides of the property, and MSHA has never before attempted to 

regulate them. Tr. 70-1, 76.

Mr. Pickett's map does not show where the tractor was moved after the issuance of 

the citation. At the hearing, Mr. Pickett asserted that at the time the citation was terminated, 

the tractor was parked on the same side of the access road as when the citation was issued, 

but had been moved about one hundred feet down the road. Tr. 70. He did not specify in 

which direction the tractor was moved. Inspector Ellis took a picture of the tractor in its new 

location at the time he terminated the citation. Tr. 34; Photograph S-9. A grainy, black-andwhite copy of that photo shows the tractor parked in front of a barely discernible wooded 

area and a large box- shaped piece of equipment, which appears to be black and white. 

Photograph S-9. Initially, Inspector Ellis testified he could not identify that piece of 

equipment and could not say how far the tractor had been moved since the issuance of the 

citation. Tr. 34, 39. Mrs. Pickett offered testimony that the unidentified piece of equipment 

was one of two boxes, one blue and the other black-and-white, that have been sitting behind 

a trailer on the property for several years. Tr. 66-8. Photographs R-13 and R-14, which were 

taken in May 2014, show the referenced blue box sitting in the storage area on the New 

London property. After viewing those pictures, Inspector Ellis agreed that the blue box 

might be the same box pictured in Photograph S-9. Tr. 45-8. Inspector Worrell testified that 

the boxes in the pictures resembled each other but did not look the same to him. Tr. 55-6.

Discussion and Conclusions of Law

The issue before me in this case is whether MSHA had jurisdiction to cite the Ford 

tractor for a violation of30 C.P.R.§ 56.14107(a).

Statutory Definition of "Coal or Other Mine"

Section 3(h)(1) of the Mine Act contains the following three-part definition of"coal 

or other mine": 

"[C]oal or other mine" means (A) an area of land from which minerals are extracted

36 FMSHRC Page 2449
in nonliquid form or, if in liquid form, are extracted with workers underground, (B)

private ways and roads appurtenant to such area, and (C) lands, excavations,

underground passageways, shafts, slopes, tunnels and workings, structures, facilities,

equipment, machines, tools, or other property including impoundments, retention

dams, and tailings ponds, on the surface or underground, used in, or to be used in, or 

resulting from, the work of extracting such minerals from their natural deposits in 

nonliquid form, or if in liquid form, with workers underground, or used in, or to be

used in, the milling of such minerals, or the work of preparing coal or other minerals,

and includes custom coal preparation facilities.

30 U.S.C. § 802(h)(1). It is well established that Congress intended this definition to be

interpreted broadly. See, e.g., Calma! Co. of Ariz., 27 FMSHRC 617, 622 (Sept. 2005), citing 

S. Rep. No. 95-181, at 14 (1977) ("[I]t is the Committee's intention that what is considered 

to be a mine and to be regulated under this Act be given the broadest possible 

interpretation.").However, the courts have recognized that the jwisdiction of the Mine Act is 

not without limitations. See, e.g., Sec yof Labor v. Nat 'I Cement Co. of Cal., Inc., et. al, 573 

F.3d 788, 794- 95 (D.C. Cir. 2009) (rejecting unreasonably expansive reading of subsection 

3(h)(1)(B)); Paul v. P.B.-KB.B., Inc., 7 FMSHRC 1784, 1787 (Nov. 1985) ("While we have 

recognized that the definition of 'coal or other mine' provided in section 3(h) of the Mine 

Act is expansive and is to be interpreted broadly ... the inclusive nature of the Act's 

coverage is not without bounds."); Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1551 

(D.C. Cir. 1984).

In Secretary of Labor v. National Cement Company of California, the Court of 

Appeals for the D.C. Circuit discussed reasonable limitations on what could be considered 

part of a "coal or other mine" under subsections 3(h)(1)(A), (B), and (C). 573 F.3d at 793-97. 

In that case, the subject mine operator leased its mine site from a ranch and held an 

appurtenant easement to the ranch-owned road that provided the sole means of access to the 

mine. /d. at 789-90. MSHA, asserting jwisdiction under subsection (B), had cited the mine 

operator for failure to maintain the access road in safe condition. Id at 790. The D.C. Circuit 

had previously expressed concerns that subsection (B) may be susceptible to an overly broad 

reading. ld at 791. To allay these concerns, the Secretary explained that she interpreted 

subsection (B) more narrowly than subsection (A). She took the position that subsection (A), 

which covers extraction areas, extends to all the facilities and equipment within the 

boundaries of the extraction area, because virtually everything within an extraction area is 

necessarily related to mining activity. Id at 794. However, she interpreted subsection (B), 

which covers private ways and roads appurtenant to extraction areas, to apply only to the 

ways and roads themselves. /d. Applying this interpretation, equipment and vehicles traveling 

on such roads would fall under MSHA jwisdiction only if they were covered under 

subsection (C), which covers only those facilities and equipment that are "used in, or to be 

used in, or resulting from" mining activities. The D.C. Circuit found that this interpretation 

of section 3(h)(1) was reasonable and in harmony with the Mine Act's overall enforcement 

scheme. /d. at 794-97.

36 FMSHRC Page 2450
The Parties' Positions

The Secretary asserts that because Pickett Mining Group is subject to MSHA' s

jwisdiction, the only remaining question is whether the cited Ford tractor was located in an 

MSHA-regulated area when the citation was issued. Secretary's Post Hearing Br. at 5-6. 

Acknowledging that MSHA lacks jwisdiction to issue citations on the recreational side of 

the New London property, the Secretary nonetheless contends that any equipment and 

facilities available for use by miners must comply with MSHA safety standards regardless of 

their location. Id at 6. The Secretary asserts that the Ford tractor was subject to 

MSHAjwisdiction at the time it was cited because it was used by a miner, was available for 

use in mining, and was located on mine property. Id at 7. The Secretary further argues that 

MSHA has jwisdiction over access roads under section 3(h)(1)(B) of the Mine Act, and 

therefore the tractor's location on the side of the mine access road subjected it to MSHA 

jwisdiction. /d. at 7-8.

Pickett Mining Group asserts that the tractor was parked in a storage area the operator

shares with Cotton Patch Gold Mine. Respondent's Post Hearing Br. at 1. Pickett Mining 

Group contends that MSHA has historically allowed dual access to and usage of this area, 

which is used for storage of personal equipment and miscellaneous other items. Id Pickett 

Mining Group further argues that the Ford tractor has never been used on mine property 

because there is no grass to mow, and the tractor never will be used on mine property 

because the company's operational and safety protocols preclude use of a piece of 

equipment of the tractor's age and condition. Id. at 2. Pickett Mining Group also argues that 

MSHA has inconsistently interpreted what part of the New London property constitutes 

mine property, considering that MSHA determined the tractor had been moved off of mine 

property when it had merely been moved one hundred feet down the road. Id. at 3.

Analysis of the Facts

The first point the Secretary makes in his closing brief is that Pickett Mining Group's

operations fall within the definition of a "coal or other mine." Petitioner's Br. at 5. Pickett

Mining Group does not dispute this fact. However, a mine's MSHA-covered status does not

give the Secretary authority to regulate equipment that is not located within the boundaries 

of the extraction area, is not a component of an appurtenant road or way, is not used by the 

operator's employees, and bears no relation to its mining operations. I conclude that the 

Secretary has impermissibly attempted to regulate such equipment in this case. For the 

reasons discussed below, I find that MSHA had no jurisdiction to issue a citation to the Ford 

tractor.

First, consistent with the Court's decision in National Cement Company of 

California, discussed above, I find that the Ford tractor is not covered under section 

3(h)(l)(B) of the Mine Act because the tractor is not a component of a road. A vehicle's 

mere presence on "private ways and roads appurtenant to" a mine site is not sufficient to 

bring the vehicle within the jurisdiction of the Mine Act.

36 FMSHRC Page 2451
section 3(h)(l )(C) because there is no evidence it has been used in, will be used in, or is the

product of mining activities. The Secretary argues the tractor is subject to Mine Act 

jurisdiction because it was used by a miner and could be used for mining. Secretary's Post 

Hearing Br. at 7. However, the tractor is and always has been used to tow a bush hog and 

mow the grass on the Cotton Patch campground. It is true that mine employee Ronnie Crook 

uses the tractor on the weekends, but not in his capacity as a miner. When using the tractor, 

he is working as a weekend campground employee and is paid out of campground funds and 

accounts. Tr. 57-61. It is undisputed that there is no grass on Pickett Mining Group's 

property and worksite, so Pickett Mining Group has no use for the bush hog mower that is 

attached to the tractor. Inspector Worrell suggested at hearing that the tractor could be used 

to haul equipment if the bush hog were removed. Tr. 18. However, Mr. Pickett testified it 

may be difficult or impossible to remove the bush hog without taking measures such as 

shearing off the bolts, considering that the tractor is an antique 1942 model and the mower 

has been attached to it for a very long time. Tr. 34, 70. Inspector Worrell ultimately 

conceded he had no reason to believe the tractor had ever been used on mine property except 

that it was parked on the access road, and Inspector Ellis testified he did not believe Pickett 

Mining Group would ever use a piece of equipment like the tractor in its mining operations. 

Tr. 25, 38. In short, there is no evidence that the tractor has ever been used by Pickett 

Mining Group's employees or in connection with its mining activities, and it appears highly 

unlikely the tractor would ever be used for mining considering its age, customary usage, and 

the difficulties and hindrance detaching the bush hog would likely entail. 

Finally, at the time the citation was issued, the tractor was not located at Pickett 

Mining Group's commercial pit, mill, or any other location that could be deemed part of an 

"extraction area" under section 3(h)( 1)(A) of the Mine Act. Rather, the tractor was parked

along the access road between the pit and the mill near the explosives magazine, on the 

same side of the road as the pit. Mere proximity to the magazine or pit is not grounds for 

assertion ofjurisdiction. At the hearing, the Secretary's witnesses advanced the theory that 

the tractor was parked on mine property. They variously delineated the bounds of the mine 

property as including (1) everything "[b]eyond the fuel shed where there's now an 

abandoned pit," and (2) everything on the same side of the access road as the pit. Tr. 42, 50. 

However, Pickett Mining Group has introduced maps, photographs, and witness testimony 

suggesting that the property beyond the fuel shed on both sides of the access road is a dualpurpose storage area routinely accessed and used both by miners and by non-miner 

employees of the Cotton Patch campground and recreational area. Specifically, Mr. Pickett 

testified that equipment and supplies used on both the recreational and mine sides of the New 

London property, such as a backhoe (used on the recreational side) and railroad ties 

(available for use on either side of the property as needed) have been stored along the access 

road for years without MSHA's oversight or intervention. Tr. 40, 53, 69-82. His wife

offered corroborating testimony, stating that the lumber and equipment had been in the 

storage area since she and Mr. Pickett moved to the New London property several years 

36 FMSHRC Page 2452

Second, I find that the tractor is not subject to the jurisdiction of the Mine Act under
the pit and mill at the time he inspected the property. Tr. 52-5. However, MSHA's other 

witness testified he remembered seeing some of the trailers and storage boxes parked along 

the access road and seemed to agree that Mr. Pickett's photographs accurately depicted the 

storage area between the pit and mill. Tr. 39-45. On consideration, I find that the Picketts' 

description of a shared storage area along the access road makes sense in light of the layout

and dual-purpose nature of the New London property and is credible. The tractor's location 

was not part of Pickett Mining Group's mine, but was part of a storage area that mine 

employees occasionally accessed.

Mr. Pickett testified that to abate the citation, he merely moved the tractor about one

hundred feet down the same side of the access road, and MSHA was satisfied. Tr. 70. The

MSHA inspector who terminated the citation could not recall how far the tractor had been 

moved and did not provide any details about its new location except that he felt it was no 

longer on mine property. Tr. 32-4. The photograph he took at the time of termination shows 

the tractor sitting along the edge of the woods in front of a box that is almost identical in 

appearance to a blue box seen in Mr. Pickett's photographs of the storage area. Photograph 

S-9; Photographs R-13, R-14. Mrs. Pickett testified that two boxes like the one in the 

termination photo had been sitting in the storage area since the Picketts moved to the 

property. Tr. 66-8. Taken together, the evidence weighs in favor of a finding that at the time 

the citation was terminated, the tractor was parked in essentially the same place it had been 

parked when the citation was issued. Thus, MSHA terminated the citation even though the 

tractor had not been moved out of the area its witnesses defined as "mine property." This 

further undermines the Secretary's position that the tractor was parked on MSHA-regulated 

mine property in the first place.

Citing various cases, the Secretary argues that because the tractor was parked in a 

dual- use area, it was subject to MSHA regulation so long as it was available for use by 

miners. However, the cases the Secretary cites are readily distinguishable from the instant 

case in that all of them include findings that the cited equipment was used for mining 

purposes.

For example, in W.J. Bokus Indus., Inc., the Commission found that MSHA had

jurisdiction to issue citations in a dual-use garage for improper storage of compressed gas

cylinders, exposed wiring on a stove fan, and a defective grinding machine. 16FMSHRC 

704 (Apr. 1994). The Commission first found that each piece of equipment at issue in that 

case was "used or to be used" in mining: the gas cylinders were used by miners as needed, 

the grinding machine was used to maintain mine equipment, and miners used the stove to 

36 FMSHRC Page 2453

back. Tr. 64-5. Mr. Pickett also submitted photographs taken in September 2012 and May 

2014 showing machinery parked along the access road; equipment and supplies sitting in 

piles in the woods on the pit side of the access road; and the large storage barn across the road, 

which is not MSHA- regulated. Photographs R-6 to R-14; Ex. R-1. The MSHA inspector who 

issued the citation claimed he did not recall seeing various equipment or supplies between
The Secretary also cites Ideal Basic Indus., Cement Div., 3 FMSHRC 843 (Apr. 

1981), in support of his argument that equipment "available for use" is subject to regulation. 

Inthat case, the evidence definitively showed the cited equipment, a track mobile with a 

defective component, had been used in mining. 3 FMSHRC at 844. However, the 

Commission went on to find that even if the evidence had been insufficient to show actual 

use during the time when the defect was present, the equipment was still "used" within the 

meaning of the Mine Act because it was located in its normal work area (on the tracks) and 

was fully capable of being operated. Id at 845. The Commission noted, "To preclude 

citation because of 'non-use' when equipment in such condition is parked in a primary 

working area could allow operators easily to use unsafe equipment yet escape citation 

merely by shutting it down when an inspector arrives." Id By contrast, in this case, there is 

no indication the cited equipment was ever used in mining or ever will be used in mining, 

rendering inapposite the concerns underpinning the Commission's dicta in Ideal Basic.

The other three cases cited by the Secretary are Administrative Law Judge decisions

which I may consider as persuasive authority. However, again, these cases are factually

distinguishable from the case at hand. In Jeppesen Gravel,the ALJ upheld MSHA's 

assertion of jurisdiction over a loader that was being used to load processed gravel into 

dump trucks for removal from the mine, characterizing this as an "integral part of [the] 

overall mining operation." 32 FMSHRC 1749, 1750 (Nov. 2010) (ALJ). In the case at hand, 

the cited equipment was not a part of Pickett Mining Group's mining operation at all. In 

Titan Constructors, Inc., the ALJ found that MSHA could assert jurisdiction over a 

mechanic shop when the evidence affirmatively established that the tools and materials in 

the shop had been used to repair and maintain mine equipment. 34 FMSHRC 403,412 (Feb. 

2012) (ALJ). Finally, in Beylund Construction, Inc., the ALJ determined MSHA had

appropriately asserted jurisdiction over the equipment in question under section 3(h)(1)(A) 

of the Mine Act because the equipment was located at the extraction site -that is, at the mine

itself. 31 FMSHRC 1410, 1414 (Nov. 2009) (ALJ). Here, the cited tractor was not located 

within the bounds of the extraction site, as discussed above. After considering all the 

36 FMSHRC Page 2454

heat the garage while they were working in it. Id at 708. The Commission then went on to 

explain how each cited condition could injure miners working in the garage. Id. By 

contrast, in this case the equipment in question is not used by miners or in mining. 

Moreover, the chance that the cited conditionwill injure aminer is virtually a nullity, asthe 

unguarded moving parts present a hazard to miners only when the tractor's engine is 

engaged while it is in a dual-purpose location, and this apparently occurs only when Ronnie 

Crook is working in his capacity as a recreational employee on the weekends.
ORDER

It is ORDERED that Citation No. 8640280 is DISMISSED.

/s/ Priscilla M. Rae

Priscilla M. Rae 

Administrative Law Judge

Distribution: 

Jeff Pickett, Pickett Mining Group, 41697 Gurley Road, New London, NC 28127

Yasmin K. Yanthis-Bailey, Esq., U.S. Department of Labor, Office ofthe Solicitor, 61 

Forsyth Street SW, Room 7Tl 0, Atlanta, GA 30303

36 FMSHRC Page 2455

Accordingly, I find that MSHA had no jurisdiction to issue Citation No. 8640280.

foregoing, I find that none of the cases the Secretary cites support a finding that equipment 

located in a dual-use area is subject to Mine Act jurisdiction when the equipment in question 

is not used by miners, has never and will never be used for mining activities, and does not 

pose a risk of injury to bystanders.
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 

September 10, 2014 

 

DECISION AND ORDER

Appearances: Ryan L. Pardue, Esq., Department of Labor, Office of the Solicitor, 

Denver, Colorado 80202, on behalf of the Petitioner, 

 Jason W. Hardin, Esq. and Mark Kittrell, Salt Lake City, UT, on behalf of 

the Respondent. 

Before: Judge L. Zane Gill 

 

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

§ 801 et seq. (1994) (“Mine Act” or “Act”), involves nine (9) section 104(a) citations, 30 U.S.C. 

§ 814(a), issued by the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) to American Coal Company (“AmCoal”) at its New Era Mine. The parties presented 

testimony and documentary evidence at the hearing held in Evansville, Indiana on February 26 

and 27, 2013. 

Prior to trial, the parties came to an agreement on two of the citations from docket 

number LAKE 2011-1055 – Nos. 8424631 and 8427551.1

 Thus, the trial concerned only the six 

citations from LAKE 2011-1054 – Nos. 8427482, 8424603, 8432076, 8432085, 8432106, and 

8432151− and one (1) citation from LAKE 2011-1055 – No. 8427550. 

I find that for Citation No. 8432076, AmCoal violated § 75.1403 of the Mine Act, 

AmCoal’s negligence was moderate, the injury was reasonably likely to result in lost workdays 

 1

 The Secretary filed a Motion to Approve Settlement, wherein AmCoal agreed to 

withdraw the penalty contest and agreed to pay the citation fines as proposed by the Secretary. I 

have approved the Motion in a Partial Settlement Decision dated September 3, 2014, and 

directed AmCoal to pay the citations as issued for a total amount of $942.00. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

AMERICAN COAL COMPANY, 

 Respondent 

 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 2011-1054 

A.C. No. 11-02752-265355 

Docket No. LAKE 2011-1055 

A.C. No. 11-02752-265355 

Mine: The American Coal Company New 

Era Mine 

36 FMSHRC Page 2456
or restricted duty, and I find that the citation was properly designated as significant and 

substantial. I assess a penalty in the amount of $1,842.00. 

I find that for Citation No. 8432085, AmCoal violated § 75.202(a) of the Mine Act, 

AmCoal’s negligence was moderate, the injury was reasonably likely to result in lost workdays 

or restricted duty, and I find that the citation was not properly designated as significant and 

substantial. I assess a penalty in the amount of $541.00. 

I find that for Citation No. 8427482, AmCoal violated § 75.202(a) of the Mine Act, 

AmCoal’s negligence was low, the injury was reasonably likely to result in lost workdays or 

restricted duty, and I find that the citation was not properly designated as significant and 

substantial. I assess a penalty in the amount of $264.00. 

I find that for Citation No. 8432106, AmCoal violated § 75.202(a) of the Mine Act, 

AmCoal’s negligence was moderate, the injury was reasonably likely to result in no lost 

workdays, and I find that the citation was properly designated as non-significant and substantial. 

I assess a penalty in the amount of $586.00. 

I find that for Citation No. 8432151, AmCoal violated § 75.370(a)(1) of the Mine Act, 

AmCoal’s negligence was moderate, the injury was reasonably likely to result in lost workdays 

or restricted duty, and I find that the citation was properly designated as significant and 

substantial. I assess a penalty in the amount of $2,902.00. 

I find that for Citation No. 8424603, AmCoal violated § 75.202(a) of the Mine Act, 

AmCoal’s negligence was moderate, the injury was reasonably likely to result in be lost 

workdays or restricted duty, and I find that the citation was properly designated as significant 

and substantial. I assess a penalty in the amount of $2,902.00. 

I find that for Citation No. 8427550, AmCoal violated § 75.400 of the Mine Act, 

AmCoal’s negligence was moderate, the injury was reasonably likely to result in be lost 

workdays or restricted duty, and I find that the citation was not properly designated as significant 

and substantial. I assess a penalty in the amount of $745.00. 

I. Stipulations:

The parties submitted the following stipulations at the hearing: (Tr. 452:10 – 453:1) 

1. At all relevant times, AmCoal was engaged in mining operation in the United States, 

and its mining operations affected interstate commerce. 

2. Prior to September 24, 2010, AmCoal was the owner and operator of the Galatia 

Mine, I.D. No. 11-02752, which encompassed multiple operations and mines (i.e., the 

New Era, New Future, and Galatia North mines). The Galatia North mine closed prior 

to September 24, 2010, and on that date, the New Future Mine began operating under 

Mine ID No. 11-03232, and the New Era Mine continued operating under Mine ID 

No. 11-02752. AmCoal remained the owner and operator of both mines. The citations 

36 FMSHRC Page 2457
at issue in the aforementioned dockets all were issued after September 24, 2010 and 

concern the New Era Mine operated by AmCoal. 

3. AmCoal is subject to the jurisdiction of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. §§801 et seq.

4. The Administrative Law Judge and Federal Mine Safety Health Review Commission 

have jurisdiction in this matter. 

5. In addition to the aforementioned paragraph, the other exhibits offered by the parties 

were stipulated to be authentic, but no stipulation was made as to the relevancy or 

truthfulness of the matters or statements asserted therein or for any other purpose 

other than establishing their authenticity. 

6. The citations at issue herein were properly served by a duly authorized representative 

of the Secretary upon an agent of AmCoal on the dates and places stated therein and 

may be admitted into evidence for the purpose of establishing their issuance, but not 

for the truthfulness or relevancy of any statements asserted therein for any other 

purpose other than establishing their issuance. 

7. AmCoal demonstrated good faith in abating the violations. 

II. Basic Legal Principals 

A. Significant and Substantial 

The Secretary bears the burden of proving all elements of a citation by a preponderance 

of the evidence. In re: Contests of Respirable Dust Sample Alteration Citations: Keystone 

Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d 151 F.3d 1096 (D.C. Cir. 1998); Jim 

Walter Resources, Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The Secretary’s 

burden is to prove the violations and related allegations, e.g., gravity and negligence, by a 

preponderance of the evidence.”) Some of the citations in dispute and discussed below have been 

designated by the Secretary as significant and substantial (“S&S”). 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). 

The question of whether a particular violation is S&S must be based on the particular facts 

surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio 

Coal Co., 9 FMSHRC 2007 (Dec. 1987). S&S enhanced enforcement is applicable only to 

violations of mandatory health and safety standards. Cyprus Emerald Res. Corp. v. FMSHRC,

195 F.3d 42, 45 (D.C. Cir. 1999). 

36 FMSHRC Page 2458
In Mathies Coal Co., the Commission established the standard for determining whether a 

violation was S&S: 

In order to establish that a violation of a mandatory safety standard 

is significant and substantial under National Gypsum, the Secretary 

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

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

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

likelihood that the hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury in question will be of 

a reasonably serious nature. 

6 FMSHRC 1, 3-4 (Jan. 1984). 

The third element of the Mathies test presents the most difficulty when determining 

whether a violation is S&S. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), 

the Commission provided additional guidance: [T]he third element of the Mathies formula 

“requires that the Secretary establish a reasonable likelihood that the hazard contributed to will 

result in an event in which there is an injury.” (citing U.S. Steel Mining Co., Inc., 6 FMSHRC 

1834, 1836 (August 1984)). The Secretary, however, “need not prove a reasonable likelihood 

that the violation itself will cause injury.” Cumberland Coal Resources, 33 FMSHRC 2357, 2365 

(Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1281 

(Oct. 2010). Further, the Commission has found 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); and Blue Bayou Sand & Gravel, Inc., 18 

FMSHRC 853, 857 (June 1996)). This evaluation is also made in consideration of the length of 

time that the violative condition existed prior to the citation and the time it would have existed if 

normal mining operations had continued. Elk Run Coal Co., 27 FMSHRC at 905; U.S. Steel 

Mining Co., Inc., 6 FMSHRC at 1574. 

B. 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.” 30 C.F.R. 

§ 100.3(d). “A mine operator is required [...] to take steps necessary to correct or prevent 

hazardous conditions or practices.” Id. “MSHA considers mitigating circumstances which may 

include, but are not limited to, actions taken by the operator to prevent or correct hazardous 

conditions or practices.” Id. Reckless negligence is present when “[t]he operator displayed 

conduct which exhibits the absence of the slightest degree of care.” Id. High negligence is when 

“[t]he operator knew or should have known of the violative condition or practice, and there are 

no mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew or should 

have known of the violative condition or practice, but there are mitigating circumstances.” Id. 

Low negligence is when “[t]he operator knew or should have known of the violative condition or 

practice, but there are considerable mitigating circumstances.” Id. No negligence is when “[t]he 

operator exercised diligence and could not have known of the violative condition or practice.” Id. 

36 FMSHRC Page 2459
The Commission has provided guidance for making the negligence determination in A. H. 

Smith Stone Co., stating that: 

Each mandatory standard thus carries with it an accompanying 

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

failure to satisfy the appropriate duty can lead to a finding of 

negligence... In this type of case, we look to such considerations as 

the foreseeability of the miner’s conduct, the risks involved, and 

the operator’s supervising, training, and disciplining of its 

employees to prevent violations of the standard in issue. 

5 FMSHRC 13, 15 (Jan. 1983) (citations omitted). 

Mitigation is something the operator does affirmatively, with knowledge of the potential 

hazard being mitigated, that tends to reduce the likelihood of an injury to a miner. This includes 

actions taken by the operator to prevent or correct hazardous conditions. 

C. Gravity

 The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is 

often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 

1541, 1549 (Sep. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983), 

aff'd, 736 F.2d 1147 (7th Cir. 1984) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 

(April 1987)). The seriousness of a violation can be examined by looking at the importance of 

the standard which was violated and the operator’s conduct with respect to that standard, in the 

context of the Mine Act’s purpose of limiting violations and protecting the safety and health of 

miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ). The gravity 

analysis focuses on factors such as the likelihood of an injury, the severity of an injury, and the 

number of miners potentially injured. The Commission has recognized that the likelihood of 

injury is to be made assuming continued normal mining operations without abatement of the 

violation. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). 

D. Penalty

 The principles governing the authority of Commission administrative law judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine Act delegates to the Commission and its judges the “authority to assess all civil 

penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing 

penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the 

Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess 

said penalty. 29 C.F.R. § 2700.28. 

Under Section 110(i) of the Mine Act, the Commission is to consider the following when 

assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness 

of such penalty to the size of the business of the operator charged; (3) whether the operator was 

negligent; (4) the effect on the operator's ability to continue in business; (5) the gravity of the 

36 FMSHRC Page 2460
violation; and (6) the demonstrated good faith in abatement of the violative condition. 30 U.S.C 

§ 820(i). Thus, the Commission alone is responsible for assessing final penalties. See Sellersburg

Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[N]either the ALJ nor the 

Commission is bound by the Secretary's proposed penalties ... we find no basis upon which to 

conclude that [MSHA's Part 100 penalty regulations] also govern the Commission.”); See 

American Coal Co., 35 FMSHRC 1774, 1819 (July 2013)(ALJ). 

The Commission has repeatedly held that substantial deviations from the Secretary's 

proposed assessments must be adequately explained using the section 110(i) criteria. E.g., 293

Sellersburg Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May 

2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000) (citations omitted). A judge need 

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

contributed to his or her penalty assessments. Cantera Green, 22 FMSHRC at 622. 

Although all of the statutory penalty criteria must be considered, they need not be 

assigned equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). 

Generally speaking, the magnitude of the gravity of a violation and the degree of operator 

negligence are important factors, especially for more serious violations for which substantial 

penalties may be imposed. Musser Engineering, 32 FMSHRC at 1289 (judge justified in relying 

on utmost gravity and gross negligence in imposing substantial penalty); Spartan Mining Co., 30 

FMSHRC 699, 725 (Aug. 2008) (appropriate for judge to raise a penalty significantly based 

upon findings of extreme gravity and unwarrantable failure); Lopke Quarries, Inc., 23 FMSHRC 

705, 713 (July 2001) (judge did not abuse discretion by weighing the factors of negligence and 

gravity more heavily than the other four statutory criteria). For example, violations involving 

“extreme gravity” and/or “gross negligence,” or, as stated in the former section of 105(a), “an 

extraordinarily high degree of negligence or gravity, or other unique aggravating circumstances,” 

may dictate higher penalty assessments. See 30 C.F.R. Part 100 Final Rule, 72 Fed. Reg. at 

13,621. 

In addition, Commission ALJs are obligated to explain any substantial divergence 

between a penalty imposed and that proposed by the Secretary. As explained in Sellersburg 

Stone Co., 5 FMSHRC at 293: 

When ... it is determined that penalties are appropriate which 

substantially diverge from those originally proposed, it behooves 

that Commission and its judges to provide a sufficient explanation 

of the bases underlying the penalties assessed by the Commission. 

If a sufficient explanation for the divergence is not provided, the 

credibility of the administrative scheme providing for the increase 

or lowering of penalties after contest may be jeopardized by an 

appearance of arbitrariness. 

36 FMSHRC Page 2461
1. Special Assessment

Through notice and comment rulemaking, the Secretary has promulgated regulations 

specifying the “Criteria and Procedures for Proposed Assessment of Civil Penalties.” 30 C.F.R. 

Part 100. Those regulations provide two options for determining the amount of a civil penalty to 

be assessed by the Secretary: regular assessment and special assessment. 30 C.F.R. §§ 

100.3, 100.5(a), (b). Penalties for the vast majority of violations are determined through the 

“regular assessment” process, whereby penalty points are assigned pursuant to criteria and tables 

that reflect the factors specified in sections 105(b) and 110(i) of the Act. 30 C.F.R. §100.3. 

The regulations also provide that MSHA may elect to waive the regular assessment 

process if it determines that conditions warrant a special assessment. 30 C.F.R. §100.5(a), (b). 

The regulations do not further explain what conditions may warrant a special assessment.2

 Nor 

do they identify how the amount of a special assessment will be determined, other than to state 

that “the proposed penalty will be based on the six criteria set forth in 100.3(a). All findings shall 

be in narrative form.” Id. The narrative findings for special assessments are typically brief and 

conclusory. 

AmCoal argued that the Secretary's secretive special assessment process arbitrarily 

subjects it to substantially enhanced penalties, and deprives it of due process. The lack of 

transparency in the Secretary's special assessment process coupled with the Secretary's refusal to 

disclose the bases for specially assessing a penalty, can frustrate attempted explanations. 

However, whether the Secretary proposes a regularly or a specially assessed penalty is not 

relevant to the Commission's determination of a penalty amount because the Commission 

imposes civil penalties de novo. While AmCoal's arbitrariness and due process arguments are 

unavailing,3

 its concerns about the practical implications of the Secretary's determination to 

specially assess a violation, especially when the assessment is not based upon extreme gravity 

and/or gross negligence, are well founded, as evidenced by these proceedings. In AmCoal's 

words, “the large disparity between the proposed special assessments and what would have 

resulted under the regular assessment guidelines, make informal resolution of such matters 

almost impossible and make time consuming and costly trials much more likely.” (Rsp. Br. at 3). 

2

 In 2007, the Secretary substantially amended the penalty regulations, significantly 

increasing penalties for most violations, eliminating the single penalty assessment, and deleting 

language from section 105(a) that specified eight categories of violations “that would be 

reviewed to determine whether a special assessment is appropriate,” including, “[v] iolations 

involving an extraordinarily high degree of negligence or gravity or other unique aggravating 

circumstances.” Ex. R-36; 30 C.F.R. Part 100 Final Rule, 72 Fed. Reg. 13,592, 13,621 (March 

22, 2007). 

3

 AmCoal argued that the absence of criteria specifying what violations would be 

specially assessed, and how special assessments would be determined, renders the special 

assessment process impermissibly vague in violation of the due process clause, citing FCC v. 

Fox Television Station, Inc., 132 S.Ct. 2307, 2317 (2012). It also argued that the process cannot 

pass muster under the Commission's reasonably prudent person test, described in Lanham Coal 

Co., 13 FMSHRC 1341, 1343-44 (Sept. 1994). However, the FCC and Lanham cases involved 

substantive standards, not penalties, and AmCoal did not challenge the language of any of the 

mandatory standards. 

36 FMSHRC Page 2462
AmCoal also argued that the “Rule To Live By” initiative as applied constitutes a 

substantive, mandatory rule, requiring notice-and-comment rulemaking, citing Drummond 

Company, Inc., 14 FMSHRC 661 (May 5, 1992). I find this argument to also be unavailing.4

 

III. The Citations

A. Citation No. 8432076 (LAKE 2011-1054) 

On January 24, 2011, at 8:45am, MSHA Inspector Edward W. Law5 issued Citation No. 

8432076 to AmCoal’s New Era Mine alleging a violation of 30 C.F.R. § 75.1403, specifically 

Safeguard No. 7568565, pursuant to Section 104(a)6 of the Mine Act. The regulation states that 

“all mine travelways be kept as free as practicable of bottom irregularities, debris, and wet and 

muddy conditions that could affect the control of mobile equipment traveling these areas.” 30 

C.F.R. § 75.1403. Section 75.1403 regulates a mandatory safety standard. The citation alleges: 

The Intake/Primary Escape way/ Travelway at cross cut #47 on the 

Main North travelway is not being kept free of bottom irregularities 

and muddy conditions that could affect control of mobile 

equipment. The area is rutted up and a mantrap has become stuck in 

the intersection when it bottomed out in the mud. The area was 

flagged off to prevent travel in the area of the ruts. 

Ex. S-1. 

1. The Violation

The citation also alleges the injury is reasonably likely to occur, the injury could 

reasonably be expected to result in lost workdays or restricted duty, the violation was significant 

4

 A substantive rule is one “issued by an agency pursuant to statutory authority and which 

implement[s] the statute.... Such rules have the force and effect of law.” Am. Min. Cong. v. Mine 

Safety & Health Admin., 995 F.2d 1106, 1009 (D.C.Cir.1993) (quoting Attorney General's 

Manual on the Administrative Procedure Act 30 n.3 (1947)) Here, AmCoal argues that according 

to Inspector Ramsey, one district manager imposed the Rule To Live By initiative as a 

requirement and not a discretionary act by each inspector, thereby making the initiative subject 

to notice-and-comment rulemaking. However, AmCoal does not make the argument that 

Inspector Ramsey was following the initiative of the Department of Labor. Additionally, 

AmCoal admitted that both Inspector Law and Inspector Rusher were not under an obligation to 

enforce the Rule To Live By Standard as a mandatory rule. (See Resp. Br. at 12; Tr. 74:19 -

75:23; 308:14-19; 313:9-20) Therefore, AmCoal did not prove that a non-discretionary initiative 

existed under the direction of the Department of Labor. 

5

 Inspector Law works for MSHA out of the Benton field office as a coal mine inspector. 

He has been an MSHA inspector since 2005. (Tr. 272:5-10) Before joining MSHA, he worked 

for Consol Mine for a year and a half and Galatia Mine for approximately 21 years. He worked 

mainly in maintenance for 19 of the 21 years. (Tr. 272:13-18) 

6

 All citations are 104(a) citations, and therefore, no analysis is necessary to determine if 

unwarrantable failures existed. 

36 FMSHRC Page 2463
and substantial, one person could be affected, and the negligence standard level was 

characterized as moderate. Id. Additionally, as of the date the citation was issued, Section 

75.1403 was cited 57 times in the two years preceding the issuance of the citation. Id. 

AmCoal argues that the citation should be vacated because it does not strictly conform to 

the requirements of Safeguard 7568565. Safeguard No. 7568565 states: 

 

Bottom irregularities, debris in the form of rock that had fallen from 

the roof, and wet and muddy conditions were present on the mine 

travelways ... [at several] locations.... This Notice to Provide 

Safeguards requires that all mine travelways be kept as free as 

practicable of bottom irregularities, debris and wet and muddy 

conditions that could affect the control of mobile equipment. 

Ex. R- 47, at 6. 

 Pursuant to section 314(b) of the Mine Act, and the Secretary's regulations, authorized 

representatives of the Secretary may issue orders, or safeguards, to address hazards related to the 

transportation of men and materials at a particular mine. 30 U.S.C. § 874(b); 30 C.F.R. § 75.1403. 

The mine operator is obligated to comply with a safeguard, and if it is violated, the operator may 

be subject to citations or orders issued pursuant to section 104 of the Act. Cyprus Cumberland 

Res. Corp, 19 FMSHRC 1781 (Nov. 1997). 

 Safeguards are issued by MSHA inspectors, who do not follow a notice and comment 

rulemaking procedure. Because this procedure is an “unusually broad grant of regulatory power” 

granted to MSHA, the Commission in Southern Ohio Coal Co., 7 FMSHRC 509, 512 (Apr. 

1985) (“SOCCO I”), held that “safeguards must be drafted with specificity, so that operators 

receive adequate notice of the conduct required and the conditions covered by the 

safeguard.” American Coal Co., 34 FMSHRC 1963, 1967 (Aug. 2012). Thus, the language of a 

safeguard, which may be issued without consulting with representatives of the operator, must be 

narrowly construed. Cyprus Cumberland, 19 FMSHRC at 1785; SOCCO I, 7 FMSHRC at 512. 

 The validity of Safeguard No. 7568565 was recently upheld by the Commission, noting 

that it has “consistently treated safeguards that specify hazardous conditions and specify a 

remedy as valid safeguards.” American Coal Co. at 1974 (emphasis in original). The Commission 

concluded that the safeguard specifies the nature of the hazard, “i.e., bottom irregularities, debris, 

and muddy conditions in a travelway that could affect the control of mobile equipment[,]” and 

specifies a remedy, “i.e., all mine travelways are to be kept as free as practicable of bottom 

irregularities, debris, and muddy conditions that could affect the control of mobile equipment.” Id. 

Here, AmCoal challenged Citation No. 8432076 and argued that a narrow interpretation 

of the safeguard, under Cyprus Cumberland and SOCCO I, requires that all three of the 

conditions identified in the safeguard be present before a violation can be established, i.e., that 

there must be bottom irregularities and debris and muddy conditions. (Resp. Br. at 61-63) Since 

there is no evidence that all three conditions were present, AmCoal argued that the citation must 

be vacated. 

36 FMSHRC Page 2464
Any of the conditions addressed by the Safeguard could threaten the loss of control of 

mobile equipment. Under the Safeguard, AmCoal was obligated to keep its travelways as free as 

practicable from any and all of the three hazardous conditions. AmCoal's strict interpretation 

argument is rejected. 

Inspector Law testified that the Safeguard requires the road should be maintained without 

ruts and irregularities so that the vehicles can travel and not affect their handling of the vehicle. 

(Tr. 273:25 − 274:1-3) Inspector Law testified that he wrote the citation because when traveling 

into the mine there was a piece of mobile equipment − a mantrip − stuck in the road in the 

primary entranceway. (Tr. 273:16-18) At the time of his inspection, the area was rutted, damp, 

and wet, which caused a loaded mantrip to bottom out. (Tr. 276:6-8; 277:16-22; 278:1-9) 

Inspector Law observed groundwater on the floor and noticed the ground was damp. (Tr. 276:1-

9) Matt Mortis,7

 AmCoal’s safety director, testified that the condition of the area was muddy at 

the time the citation was issued. (Tr. 322:4-7) For the reasons stated above, I find that AmCoal 

violated § 75.1403 of the Mine Act. 

2. Negligence 

Inspector Law assessed the violation as arising from moderate negligence. As stated 

above, moderate negligence is when “[t]he operator knew or should have known of the violative 

condition or practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d). AmCoal 

argued that the inspector did not investigate if management was on the mantrip that was stuck 

(Tr. 298:22); the mantrip could have been carrying a crew of hourly employees (Tr. 298:13-17); 

the citation was issued at 8:45am, but the crews did not leave until 9:00am (Ex. R-45; Tr.325:2 −

326:8); and Inspector Law’s notes indicate that it was unknown who knew of the conditions (Tr. 

295:16-19; Ex. R-2). Mr. Mortis testified that AmCoal built a sump area near the crosscut and 

used PVC pipe and a staged pneumatic pump to pump out excess water because the area is under 

an aquifer. (Tr. 322:6-23; 331:12-23) Mr. Mortis also testified that the road was maintained at 

first every shift, but then after they put the PVC pipe and the gravel they just maintain it “daily if 

they needed more work, they would do it; if not, it was okay.” (Tr. 329:4-7). 

Inspector Law testified that the citation was marked as moderate negligence, as opposed 

to a higher negligence standard, because mine managers travel the road where the violation 

occurred and could have noticed the ruts, and that the area where the violation occurred can get 

rutted pretty quickly. (Tr. 286:9-18) He also testified that the negligence standard was cited as 

moderate because the mantrip in question sits lower to the ground than most models. Id. Mr. 

Mortis admitted that the area in question where the violative condition occurred is traditionally 

wet, is a travelway, and is an escapeway. (Tr. 327:17-24) Mr. Mortis also testified that the 

condition of the area at the time of the citation was muddy. (Tr. 322:4-7) From Inspector Law’s 

vantage point coming into the mine, you could see the wet and rutted conditions “pretty easily” 

 7

 At the time of trial, Mr. Mortis was the AmCoal New Era Mine Safety Director since 

July of 2010. (Tr. 88:15-19) Mr. Mortis previously worked for KVR for two years and Peabody 

Coal as a Safety Director. (Tr. 89:5-19) Mr. Mortis worked in safety for Alliance Coal Company 

before that for four years. (Tr. 89:23 − 90:2) Before that Mr. Mortis worked for Ken American 

Resources as a miner for six years. (Tr. 90:6-14) 

36 FMSHRC Page 2465
and it was “fairly obvious.” (Tr. 284:19-25) He also testified that he had previously issued 

citations in this area for this issue. (Tr. 281:4-6) Based on the above, I find AmCoal’s negligence 

to be moderate. 

3. Gravity

The gravity analysis focuses on factors such as the likelihood of an injury, the severity of 

an injury, and the number of miners potentially injured. Inspector Law testified that the 

Safeguard covers road irregularities, so anywhere in the mine where a road becomes hazardous 

to travel or someone can get injured traveling in and out, the operator has to rehabilitate. (Tr. 

287:14-19) He designated the citation as reasonably likely because he believed the mantrip 

would come to a sudden stop or would lose control in the muddied ruts in the travelway. (Tr. 

282:7-12) He also testified that he listed lost work days due to the potential broken bones in the 

hands from the impact with the steel areas inside the mantrip. (Tr. 283:3-6) The mantrip in this 

case was all steel, so the miners would hit the steel if an accident occurred. (Tr. 282:15-17) 

These injuries were likely to occur if there was a sudden stop or loss of control of the mantrip. 

(Tr. 283:3-7) Breaking the bones in your hand or breaking your wrist from a vehicle accident 

caused by bottom irregularities is serious in nature. The fact that Inspector Law did not know 

how the mantrip bottomed out, or whether they slowed down or stopped suddenly is of no 

consequence to the gravity determination. (Tr. 280:16-20). I agree that the injury could 

reasonably likely result in lost workdays or restricted duty. 

4. Significant and Substantial 

As stated above, I have already determined that there was a violation of a mandatory 

safety standard. Additionally, I determined there is a reasonable likelihood that the injury in 

question will be of a reasonably serious nature, i.e. broken bones in the hand or broken wrists. A 

measure of danger to safety, a discrete safety hazard, was contributed to by the wet, muddy 

conditions that caused rutting on the ground, and thus can impair an operators ability to control a 

piece of mobile equipment, which could result in injuries to a miner or miners. What is left to be 

determined is whether there was a reasonable likelihood that the hazard contributed to will result 

in an injury. 

The area in question is a travelway that is used continually. (Tr. 288:3-6) Everyone 

coming in and out of the mine with a piece of equipment uses this entry. Id. It is also the primary 

escapeway from the mine and it was obvious to Inspector Law that the operator was not 

maintaining the roads. (Tr. 317:5-7) 

Inspector Law testified that the hazards he was thinking about when he wrote the citation 

included people getting jostled around and thrown around inside the vehicles they were traveling 

in, hitting the corners, or hitting something solid while driving in a vehicle. (Tr. 281:9-20) The 

one person affected designation could be the operator or the person in the front passenger seat 

because he is sitting adjacent to the steel frames and he is going to be jostled or thrown in those 

areas. (Tr. 283:11-16) 

36 FMSHRC Page 2466
AmCoal argued that there was no standing water in the area affected, it was just damp 

(Tr. 286:5-6); the travelway was straight and relatively level (Tr. 288:23-25; 306:20); the 

travelway was wide enough to have two-way traffic, and that after the mantrip was stuck, there 

was room for foot traffic. (Tr. 275:22-23; 285:6-7) However, these proffered reasons for the 

Secretary not meeting his burden of proving S&S is unavailing. A loss of vehicle control would 

be reasonably likely to result in impact injuries to passengers who would not expect or brace 

themselves for sudden impacts. Inspector Law testified that he was aware of even more serious 

injuries from mantrip accidents in rough, wet, and muddy conditions. (Tr. 303:4-13) I find that 

the Secretary properly designated this citation as S&S. 

5. Penalty 

The Secretary specially assessed the penalty for this citation as $5,600.00. The AmCoal 

New Era Mine operates a 5,774,752 tonnage mine. Additionally, as of the date the citation was 

issued, Section 75.1403 was cited 57 times in the two years preceding the issuance of the 

citation. As I found above, AmCoal was moderately negligent. At even the assessed penalty of 

$5,600.00, AmCoal’s business will not be significantly affected. As to the gravity of the 

violation, I found the violation to be S&S. According to the stipulations agreed to by the parties, 

AmCoal demonstrated good faith in abatement of the violative condition. 

The Secretary failed to prove that the magnitude of the gravity of the violation, that the 

degree of operator negligence was gross or extreme, or any other unique aggravating 

circumstances to warrant a higher or “special” penalty assessment. Therefore, I assess a penalty 

in the amount of $1,842.00. 

B. Citation 8432085 (LAKE 2011-1054) 

On February 3, 2011, at 11:45am, MSHA Inspector Law issued Citation No. 8432085 to 

AmCoal’s New Era Mine alleging a violation of 30 C.F.R. § 75.202(a) pursuant to Section 

104(a) of the Mine Act. The regulation states 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 

citation is a violation of a mandatory safety standard. The citation alleges: 

 The ribs on the inby side of cross cut #119, from the man door to 

the belt is not being adequately supported or controlled where the 

miners normally work or travel to protect miners from the hazards 

related to falls of the roof and ribs. The rib on the inby side is 

cracked and leaning out toward the walkway. The rib is 

approximately 20 feet long, 4 to 6 feet high and 1 to 8 inched thick. 

The rib is gapped open from 3-6 inches between the rib and coal 

pillar. 

Ex. S-4. 

36 FMSHRC Page 2467
1. The Violation 

The citation also alleges the injury as reasonably likely to occur, said injury could 

reasonably be expected to be lost workdays or restricted duty, the violation was significant and 

substantial, one person would be affected, and the negligence standard was cited as moderate. Id.

Section 75.202(a) was cited 98 times in the two years preceding the issuance of the citation. 

Inspector Law testified that there was an area of the rib, inby crosscut 119 adjacent to a 

mandoor that was bad, broken, cracked open, leaning, and hazardous. (Tr. 333:11-13) AmCoal 

does not dispute the existence of the hazardous condition, i.e., the loose rib on the inby side of 

crosscut 19 near a mandoor. (Resp. Br. at 73) Inspector Law testified that the area is used by 

people accessing the back of the belt for things such as, cleaning, shoveling, or carrying 

materials through it. (Tr. 334:10-17; 335:3-6). For these reasons, I find that AmCoal violated 

Section 75.202(a) of the Mine Act. 

2. Negligence 

Inspector Law assessed the violation as moderate negligence. As stated above, moderate 

negligence is when “[t]he operator knew or should have known of the violative condition or 

practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d). Inspector Law 

designated the citation as moderate negligence because of the location of the violative condition, 

and because it might be hard for an examiner to see the damaged area because of the rock 

dusting. (Tr. 341: 24 − 342:15) Inspector Law testified that he wrote it was unknown who knew 

of the violative condition at the time the citation was issued, but did notice the rib was rock 

dusted. (Tr. 337:7-17) In fact, it had been gapped open long enough that the rock dust present did 

not appear to be fresh. Id. Inspector Law also observed that there were no warning flags on the 

rib. (Tr. 339:2-3) 

AmCoal argued that the mandoor was small – measuring three (3) feet by three (3) feet. 

(Tr. 345:17-18) Charles Thome,8

 AmCoal’s mine examiner, testified that while he was 

responsible for examining the cited area, he “never” used this mandoor and did not know of 

anyone else who had ever used the mandoor. (Tr. 353:22-24; 360:12-25) Mr. Thome, during his 

inspections, did look down to inspect crosscuts with doors, but he did not walk each crosscut and 

did not see the cracked and leaning rib. (Tr. 364:17-25) AmCoal should have known of the 

hazard because, as Mr. Thome testified, on the date of the citation he performed the pre-shift 

examination of the belt line and in that immediate area of 119 and 102. (Tr. 353:17-24) There 

were no mitigating factors shown. For the reasons stated above, I agree with the designation that 

was cited, and find the negligence to be moderate. 

 8

 Mr. Thome works for American Coal Company New Era Mine as a mine examiner. (Tr. 

351:13-15) He travels all over the mine examining all areas of the mine, belt lines, units, heads, 

drives, and tails, return escapeways, and primary and secondary escapeways, examining for 

safety issues and hazards. (Tr. 351:17-24) Before working at American Coal, he worked at 

Zeigler Coal Company for thirty years as a roof bolter, general inside laborer, scoop operator, 

and he filled in on hoisting engineer and examining. (Tr. 352:14-23) Mr. Thome has thirty-nine 

years’ experience in coal mining. (Tr. 353:1-2) 

36 FMSHRC Page 2468
3. Gravity

The gravity analysis focuses on factors such as the likelihood of an injury, the severity of 

an injury, and the number of miners potentially injured. Inspector Law testified that the hazard 

was that at any given time, any vibration, or if the rib continued taking weight it could not 

handle, the rib could fall over and badly injure someone. (Tr. 339:4-11) A miner’s right side 

coming through the mandoor would be exposed up to six feet, depending on how close he was to 

the rib. (Tr. 340:18-24) A miner would likely be struck because the rib gives no warning when it 

falls. The rib was already separated, hazardous, and leaning. (Tr. 341:2-7) So it was ready to fall 

at any given time and it was likely to fall. Id. Inspector Law testified that it was a matter of 

when, not if, the rib was going to fall. (Tr. 341:8-9) He also testified that the injury cited was lost 

work day injuries from broken bones − leg or arm− or getting trapped with rubble on top of the 

miner. (Tr. 339:13-19) The injury sustained from being struck from a falling rib is serious in 

nature. I agree with the designation of lost work days or restricted duty as Inspector Law 

assessed. 

4. Significant and Substantial

As stated above, I have already determined that there was a violation of a mandatory 

safety standard. Additionally, I determined there is a reasonable likelihood that the injury in 

question will be of a reasonably serious nature, i.e. broken bones. A measure of danger to safety, 

a discrete safety hazard, was contributed to by the cracked, leaning, and unsupported rib, which 

could result in injuries to a miner or miners. What is left to be determined is whether there was a 

reasonable likelihood that the hazard contributed to will result in an injury. 

Inspector Law indicated one person affected because typically only one person would be 

behind the belt shoveling or inspecting the belt. (Tr. 341:15-21) The rib did not have any support 

− it was freestanding and leaning. (Tr. 338:16-19) Indeed, it appeared to Inspector Law that the 

cracked and leaning rib was in a condition to fall at any time. (Tr. 339:10-11) However, only the 

miner’s right side coming through the door would be exposed up to six feet, depending on how 

close he was to the rib. (Tr. 340:18-24) Additionally, Mr. Thome’s testimony that he never used 

the 3x3 mandoor and that he never knew of anyone using the mandoor near the cracked rib, 

decreases the likelihood that an injury was reasonably likely to occur. (Tr. 360:12-25) 

Additionally, Inspector Law also testified that the mandoor and the area near the cracked rib was 

not used day-to-day. (Tr. 335:7-8) I find that the Secretary did not meet his burden to prove the 

violation was reasonably likely to result in serious injury, and therefore the citation should not be 

designated as S&S. 

5. Penalty

The Secretary specially assessed the penalty for this citation at $9,100.00. The AmCoal 

New Era Mine operates a 5,774,752 tonnage mine. Additionally, Section 75.202(a) was cited 98 

times in the two years preceding the issuance of the citation.9

 As I found above, AmCoal was 

moderately negligent. At even the assessed penalty of $9,100.00, AmCoal’s business will not be 

 9

 The Secretary asserts that one of the reasons that all of the Section 75.202(a) citations 

were specially assessed was that AmCoal was put on notice of enhanced enforcement. This alone 

does not warrant a special assessment. 

36 FMSHRC Page 2469
significantly affected. As to the gravity of the violation, I found the violation was not S&S. 

According to the stipulations agreed to by the parties, AmCoal demonstrated good faith in 

abatement of the violative condition. 

The Secretary failed to prove that the magnitude of the gravity of the violation, that the 

degree of operator negligence was gross or extreme, or any other unique aggravating 

circumstances to warrant a higher or “special” penalty assessment. Therefore, I assess a penalty 

in the amount of $541.00. 

C. Citation 8427482 (LAKE 2011-1054) 

On February 14, 2011, at 11:50am, MSHA Inspector James D. Rusher,10 issued Citation 

No. 8427482 to AmCoal’s New Era Mine alleging a violation of 30 C.F.R. § 75.202(a) pursuant 

to Section 104(a) of the Mine Act. The regulation states 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 citation cites a violation of a mandatory safety standard. The citation alleges: 

The roof of areas where persons work or travel was no longer 

adequately supported or otherwise controlled to protect persons 

from hazards related to falls of the roof. There are two installed 

pattern roof bolts that had been dislodged in the No. 3 entry at 

approximately tag No. 8250’ on the 8th West Unit, MMU 009-0. 

Ex. S-6. 

1. The Violation 

The citation also alleges the injury is reasonably likely to occur, the injury could 

reasonably be expected to be lost workdays or restricted duty, the violation was significant and 

substantial, one person could be affected, and the negligence level was moderate. Id. Section 

75.202(a) was cited 99 times in the two years preceding the issuance of the citation. 

 

Upon inspection of the mine, Inspector Rusher discovered two pattern roof bolts that had 

been dislodged by mobile equipment, with bearing plates that were no longer connecting the roof 

as designed and no longer adequately supporting the roof. (Tr. 14:13-15) Inspector Rusher 

testified that the bearing plate, coupled with intact fully grouted roof bolts, are what give the roof 

its support, and when those bolts are bent, the bolts no longer provide the support necessary for 

the roof. (Tr. 84:15-21) The roof bolts were dislodged in a haulage road area. (Tr. 14:16-19) Mr. 

Morris agreed that the two bolts were damaged. (Tr. 100:16-24) Inspector Rusher testified that 

the people who use the entry where the dislodged bolts were located were the continuous miner, 

 10 James Rusher had worked for MSHA for approximately thirty-three years as a federal 

health and safety inspector at the time of trial. (Tr. 11:5-8) At one point Inspector Rusher was a 

district training manager. (Tr. 11:9) He also worked for Freeman United Coal Company in 

Sesser, IL for about eleven years. (Tr. 11:14-18) 

36 FMSHRC Page 2470
the supervisor, coal haulers, roof bolter operators, possibly a mechanic, and mine examiners. (Tr. 

16:10-14) He also testified that the conditions of the bolts were in violation of AmCoal’s roof 

control plan. (Tr. 13:7-12) For the reasons stated above, I find that AmCoal violated 30 C.F.R. § 

75.202(a). 

2. Negligence 

Inspector Rusher assessed the violation as moderate negligence. As stated above, 

moderate negligence is when “[t]he operator knew or should have known of the violative 

condition or practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d). Inspector 

Rusher indicated that the violative condition was obvious, and stated that he noticed the damaged 

bolts 50 to 60 feet away. (Tr. 20:12-15) However, I find that the Secretary failed to prove by a 

preponderance of evidence that AmCoal knew or should have known that the violative condition 

existed. The Secretary produced no evidence at trial that any AmCoal management or any 

personnel “knew” of the two damaged bolts. Inspector Rusher did not identify or notice any 

management or hourly personnel in entry No. 3 where the violative condition was located. (Tr. 

20:16-18; 50:9-14) Additionally, the only evidence produced at trial that AmCoal “should have 

known” that the violative condition existed was: (1) that the supervisor would have to have 

conducted gas checks at the No. 3 face and thus would have been in the proximity of the 

damaged bolts, and (2) that the bolts were damaged by equipment being operated in the section. 

The gas check requiring methane tests to be conducted every twenty (20) minutes “during 

the operation of equipment in the working place” but “[w]hen mining has stopped for more than 

20 minutes, methane tests shall be conducted prior to the startup of equipment.” 30 C.F.R. § 

362(d). Inspector Rusher based his gas check requirement on his notes stating that the unit was 

active. (Tr. 60:3-7; Ex. R-6, at 3) However, according to the production and delay report for that 

shift, and the testimony of Mr. Mortis, the area was idle from 8:55am until 2:00pm (Tr. 105:7-9), 

and the workers did not began loading until 2:50 pm. (Tr. 107:1-4) The citation was issued at 

11:50am. Additionally, the Secretary produced no evidence at trial that the personnel operating 

the equipment would or should have known that their equipment hit two roof bolts. 

As such, the Secretary failed to meet his burden to prove moderate negligence. Because 

Section75.202(a) was cited 99 times in the two years preceding the issuance of the citation, I find 

that there was low negligence. 

3. Gravity

The gravity analysis focuses on factors such as the likelihood of an injury, the severity of 

an injury, and the number of miners potentially injured. Inspector Rusher was concerned about 

the roof falling and hitting miners traveling in the area. (Tr. 22:14-17) A roof fall would usually 

result in lost-time injuries, or worse, possibility a fatality. (Tr. 22:20-22) The potential injuries 

from a roof fall are serious. I agree that if a roof fall were to occur, the injury could reasonably 

be expected to be lost workdays or restricted duty. 

36 FMSHRC Page 2471
4. Significant and Substantial

As stated above, I have already determined that there was a violation of a mandatory 

safety standard. Additionally, I determined there is a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. A measure of danger to safety, a discrete safety 

hazard, was contributed to by the damaged roof bolts, which could result in injuries to a miner or 

miners. What is left to be determined is whether there was a reasonable likelihood that the hazard 

contributed to would result in an injury. 

It was apparent at trial that there was a question of fact whether limestone was present 

where the violative condition was located. Inspector Rusher testified that the roof sounded 

“drummy” when tested with a sounding rod. (Tr. 85:14-18) To Inspector Rusher, the “drummy” 

sound indicated that the beam was not solid. Id. He also testified that limestone thickness varied 

through the mine roof. (Tr. 39:24) 

Gary Vancil, Jr.,11 witness for AmCoal, testified that limestone is the best possible roof 

because it is very hard. (Tr. 134:8-15) Inspector Rusher testified that limestone is like concrete. 

(Tr.35:8-9) Mr. Vancil testified that he was personally familiar with the 8th west gate where the 

two bolts were dislodged because he was mapping, looking at limestone thickness, and looking 

for any geological hazards in the area. (Tr. 130:9-16) Mr. Vancil testified that the immediate roof 

at the location had very good limestone − non-jointed and no shale in it whatsoever. (Tr. 142:4-

9) Additionally, he testified that there was limestone four feet to five feet up where the violative 

condition was located. (Tr. 142:10-15) 

Mr. Vancil did not think there was a likelihood of a roof fall in the violative area even if 

the two roof bolts were damaged because of the strength of the limestone. (Tr. 144:10-22) He 

testified that the roof bolts were only in place because AmCoal was required to put them there 

and the roof bolts did not offer more strength than what the limestone already had. Id. 

Inspector Rusher testified that due to the nature of the fully grouted resin bolts, the resin 

(glue) would spread into the cracks and strengthen the roof (Tr. 31:2-24), and would still provide 

some roof support if the bolts were dislodged. (Tr. 32:18-22) Additionally, neither the 

inspector’s notes nor the citation states that there was a “drummy” sound in the violative area. 

(Tr. 34:3-11) 

 Based on the foregoing, I find that the Secretary failed to prove by a preponderance of 

evidence that there was a reasonable likelihood that the hazard contributed to will result in an 

injury. Therefore, I find that the S&S designation was unwarranted for this citation. 

 11 Mr. Vancil is a senior geologist at AmCoal in the Galatia mine. He handles Utah, 

western Kentucky, and Illinois. (Tr. 128:23-25) He started working at AmCoal two and a half 

years before testifying at trial. (Tr. 129:3) After getting his Master’s degree, he worked in the oil 

fields of west Texas, and he also worked out in the Thunder River basin in Wyoming for Triton 

Coal Company. (Tr. 129:9-12) Mr. Vancil has a master’s and undergraduate degree, both in 

geology. (Tr. 129:14-16) 

36 FMSHRC Page 2472
5. Penalty

The Secretary specially assessed the penalty for this citation at $9,800.00. The AmCoal 

New Era Mine operates a 5,774,752 tonnage mine. Additionally, Section 75.202(a) was cited 99 

times in the two years preceding the issuance of the citation. As I found above, AmCoal’s 

negligence was low. At even the assessed penalty of $9,800.00, AmCoal’s business will not be 

significantly affected. As to the gravity of the violation, I found the violation was not S&S. 

According to the stipulations agreed to by the parties, AmCoal demonstrated good faith in 

abatement of the violative condition. 

The Secretary failed to prove elevated gravity of the violation, that the degree of operator 

negligence was gross or extreme, or any other unique aggravating circumstances to warrant a 

higher or “special” penalty assessment. Therefore, I assess a penalty in the amount of $264.00. 

D. Citation No. 8432106 (LAKE 2014-1054) 

On February 16, 2011, at 1:30pm, MSHA Inspector Law issued Citation No. 8432106 to 

AmCoal’s New Era Mine alleging a violation of 30 C.F.R. § 75.202(a) pursuant to Section 

104(a) of the Mine Act. The regulation states 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 

citation cites a violation of a mandatory safety standard. The citation alleges: 

The roof on 5 seam at survey station #225 West and #225 South is 

not being adequately supported or controlled where miners work or 

travel to protect miners from the hazards related to falls of the roof 

and ribs. The corners on both sides of the travelway have rashed 

away. The East corner is 8 feet from the roof bolt to the coal pillar 

for 3 bolts and approximately 12 feet in length. The West corner is 

7 feet from the roof bolt to the coal pillar for approximately 10 feet. 

The corners have been particularly loaded out by the end loader. 

The area was flagged out by the operator at the time of the issuance 

of the citation to prevent travel in the area. 

Ex. S-8. 

1. The Violation

The citation alleges the injury is unlikely, the injury could reasonably be expected to 

result in lost workdays or restricted duty, the violation was not significant and substantial, one 

(1) person could be affected, and the negligence standard was cited as moderate. Id. AmCoal is 

not contesting the citation as written; they are contesting the penalty amount. (Tr. 367:3-8) 

Additionally, at trial the parties stipulated to the designations alleged in the citation. (Tr. 367:1 −

369:15; 378:21-23) Further, AmCoal’s attorney stated that they agree with the statutory criteria 

that would justify a regular assessment. (Tr. 368:7-9) 

36 FMSHRC Page 2473
The citation was issued under 75.202(a). Inspector Law testified that a miner was doing 

some rehabilitation work, cleaning up the violative area with an end loader. (Tr. 370:8-20) He 

further testified that there was an area about 12 feet by seven feet that was unsupported where 

they had been cleaning under and around. Id. The violative condition occurred because the more 

the miner cleaned, the more the ribs rashed, and the ribs became wider from the bolts. (Tr. 372:3-

6) Inspector Law testified that it is not unusual to do the rehabilitation work like what was 

occurring, but AmCoal had to go back and re-bolt or set timbers because of the expanded the size 

of the area. (Tr. 372:21-25) He cited Section 202(a) because the conditions and rehabilitation 

work caused the area to become unsupported. (Tr. 378:15-19) I find that AmCoal violated 

Section 75.202(a). 

2. Negligence 

Inspector Law assessed the violation as moderate negligence. As stated above, moderate 

negligence is when “[t]he operator knew or should have known of the violative condition or 

practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d). Section 75.202(a) was 

cited 99 times in the two years preceding the issuance of the citation. Inspector Law testified that 

he cited moderate negligence because when he was in the violative area, only an operator was 

working and there was no foreman, and there is no way to know if the operator knew or should 

have known that something needed to be done about the roof. (Tr. 374:6-22) Inspector Law 

further testified that the foreman could have come and checked the area, but there was no way of 

knowing if he did so before or after or if he saw the damage. (Tr. 374: 25 − 375: 7) However, 

Inspector Rusher testified that someone should have been paying attention to make sure that the 

exposed area was supported. (Tr. 385:19-25) For the reasons stated above, I find that AmCoal 

was moderately negligent. 

3. Gravity

The gravity analysis focuses on factors such as the likelihood of an injury, the severity of 

an injury, and the number of miners potentially injured. Inspector Law assessed the violation as 

lost workdays or restricted duty. He testified that there were no people on foot in the area, and 

there was only an operator who was driving in a cab of a piece of equipment. (Tr. 377:22-25) He 

further stated that the machine operator would be protected by the cab and canopy if the roof 

were to collapse. Id. A roof fall could result in serious injury, however, the facts presented at trial 

indicate that the gravity determination should be lower. The Secretary failed to prove by a 

preponderance of evidence that there would be lost work days or restricted duty. As such, I find 

that the injury could be reasonably expected to be no lost work days. 

4. Significant and Substantial 

Inspector Law testified that there were no people on foot in the area, and there was only 

one operator who was driving in a cab of a piece of equipment who would be protected by the 

cab and canopy. (Tr. 377:22-25) The gravity designation was cited as unlikely by Inspector Law 

because the area was not hanging, or cracked, or hazardous, there was just a corner missing. (Tr. 

377:2-8) I agree and find that the likelihood of injury is unlikely and that Inspector Law was 

correct in making the citation non-S&S. 

36 FMSHRC Page 2474
5. Penalty

The Secretary specially assessed the penalty for this citation as $9,100.00. The AmCoal 

New Era Mine operates a 5,774,752 tonnage mine. Additionally, Section 75.202(a) was cited 98 

times in the two years preceding the issuance of the citation. As I found above, AmCoal was 

moderately negligent. At even the assessed penalty of $9,100.00, AmCoal’s business will not be 

significantly affected. As to the gravity of the violation, I found the violation was not S&S. 

According to the stipulations agreed to by the parties, AmCoal demonstrated good faith in 

abatement of the violative condition. 

The Secretary failed to prove that the gravity of the violation was elevated, that the 

degree of operator negligence was gross or extreme, or any other unique aggravating 

circumstances to warrant a higher or “special” penalty assessment. Therefore, I assess a penalty 

in the amount of $586.00. 

E. Citation No. 8432151 (LAKE 2014-1054) 

On March 21, 2011, at 10:15am, MSHA Inspector Law issued Citation No. 8432151 to 

AmCoal’s New Era Mine alleging a violation of 30 C.F.R. §75.370(a)(1) pursuant to Section 

104(a) of the Mine Act. The regulation states that “[t]he 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...” 30 

C.F.R. §75.370(a)(1). The citation is a violation of a mandatory safety standard. (Tr. 395:19-21) 

The citation alleges: 

The approved ventilation plan for this mine is not being complied 

with in the Intake/ Primary Escape Way/ Travelway from the 6th

West Airshaft to the mouth of the 6th West Head gate is extremely 

dusty. Heavy concentrations of air born dust can be seen throughout 

the entry and is limiting the visibility of equipment operators in the 

area. A large plum of dust is also being created by the exhaust 

discharge of a supply tractor also creating visibility hazards. The 

dry roads had a layer of powdery dust that was getting suspended 

when driving through the area. 

Ex. S-21. 

1. The Violation 

The citation alleges that an injury is reasonably likely to occur, the injury could 

reasonably be expected to result in lost workdays or restricted duty, the violation was significant 

and substantial, one person could be affected, and the violation arose from moderate negligence. 

Id. Section 75.370(a)(1) was cited 66 times in the two years preceding issuance of the citation. 

Inspector Law testified that from the 6 west headgate, where they were still developing the area 

as a longwall entry, examiners, mine managers, crew, and belt workers would be traveling in the 

36 FMSHRC Page 2475
violative area. (Tr. 393:9-15) That is because the 6 west air shaft is on the main travelway and 

primary escapeway. (Tr. 393:16-20) 

Inspector Law testified that as he was traveling on a golf cart, he ran into visible airborne 

dust, the roads were very dry, and the roads had not been watered. (Tr. 393:23 − 394:2) The 

closer he got to the mouth, the dustier it became. Id. AmCoal was running Fairchild scoops on 

which the exhaust dumps downwards. Because the roads were not watered, this caused plumes of 

dust in the air. (Tr. 394:9-12) Keith Violett,12 witness for AmCoal, testified that Inspector Law 

told him to pull the golf cart over so that he could see how long it would take for the dust to 

settle − it took about 30 to 45 seconds. (Tr. 431:22 − 432:5) Mr. Violett also testified that it was 

fairly dusty, but not to the point where you couldn’t see. (Tr. 432:17-18) Based on the foregoing, 

I find the AmCoal violated Section 75.370(a)(1). 

2. Negligence

Inspector Law assessed the violation as moderate negligence. As stated above, moderate 

negligence is when “[t]he operator knew or should have known of the violative condition or 

practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d). The undisputed evidence 

at trial showed that the cited area is extremely dry during the winter months. (Tr. 396:13-19; 

434:10-11) Inspector Law testified that this is a problem area of the mine for dry conditions, and 

AmCoal is required to keep the travelway watered. (Tr. 396:19-25) He was aware of the 

travelway watering program and admitted it usually does a pretty good job controlling the dust. 

(Tr. 401:14-23) He also testified that in the winter, the time it takes to dry depends on the 

temperature, so it could take as little as a shift for it to become dusty with low visibility. (Tr. 

397:17-25) Inspector Law testified that the violative condition was obvious because the dust was 

visible as he was traveling through it. (Tr. 396:5-10) 

Inspector Law testified that he designated the citation as arising from moderate 

negligence partly due to the time factor, because it can get dry very quickly, however, he said 

that he could have made the designation high just the same. (Tr. 400:14-17) Marvin Webb,13

witness for AmCoal, testified that if they had not been cited, they would have watered the area 

anyway in an hour or less. (Tr. 446:9-11) Mr. Webb testified that AmCoal has a road watering 

program that uses a modified ram car with installed water tanks to water the roadways. (Tr. 

440:7-16) Mr. Webb testified that the area would be watered once or twice a shift, depending on 

how dry it was. (Tr. 446:20-22; Tr.447:18) This watering program is evidence that AmCoal 

knew of the dry and dusty condition of the area and should have been more vigilant to meet the 

ventilation plan and water the area. While the roads were watered every shift (Tr. 443:2-3), 

12 Mr. Violett is a safety specialist for AmCoal, and worked as both an examiner and now 

is in the safety department. (Tr. 430:22-23; 431:13-14) He had worked at AmCoal for six years 

prior to the time of trial. (Tr. 431:2-4) He has about 37 years in the mines, both underground and 

surface. He has been an examiner, mechanic, and pretty must everything else. (Tr. 431:7-10) 

13 Mr. Webb is a shift foreman at AmCoal. (Tr. 437:21-23) He has worked for American 

Coal for fourteen years. (Tr. 438:5) At the time of trial, he had been in the mining industry for 39 

years (Tr. 438:8), and he had been a supervisor at American Coal for six or seven years. Before 

joining AmCoal he was a supervisor at Old Ben Coal Company for about 17 years. (Tr. 438:20-

22). 

36 FMSHRC Page 2476
AmCoal’s ventilation plan requires AmCoal to water the roadways as required before conditions 

deteriorate to dust clouds. For the reasons stated above, I find that AmCoal was moderately 

negligent. 

 

3. Gravity

The gravity analysis focuses on factors such as the likelihood of an injury, the severity of 

an injury, and the number of miners potentially injured. Inspector Law was concerned about the 

visibility hazard for people traveling through the area. (Tr. 398:4-10) He testified that there was 

equipment and people in the violative area and all you could see was the dim headlights and 

nothing else, and you couldn’t tell if something was coming at you other than by sound. Id.

Inspector Law testified that he could barely keep his eyes open at times because the dust was 

coming at him at a high volume. (Tr. 399:7-9) Inspector Law classified the citation as lost work 

days or restricted duty, but he could have easily classified it as fatal because he could have easily 

been run over in his golf cart by the machinery working in the mine. (Tr. 398:13-15) I find that 

there was a reasonably likelihood of a serious injury and agree with the lost workdays or 

restricted duty determination. 

4. Significant and Substantial

As stated above, I have already determined that there was a violation of a mandatory 

safety standard. Additionally, I determined there is a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. A measure of danger to safety, a discrete safety 

hazard, was contributed to by the dusty conditions in violation of the ventilation plan, which 

cause visibility issues, and could result in injuries to a miner or miners. What is left to be 

determined is whether there was a reasonable likelihood that the hazard contributed to will result 

in an injury. 

Inspector Law testified that he designated the citation as one person affected, but it could 

have easily been two. (Tr. 400:9-12) He stated that he hoped someone would be able to get out of 

the way if a machine was going to hit him. Id. The dusty conditions made it difficult to determine 

the direction of travel of other vehicles. (Tr. 426:3-9) Mr. Violett testified that although it was 

dusty, he could still see the scoop. (Tr. 431:22 – 432:3) Based on the dusty conditions that 

negatively affected visibility, there was a reasonable likelihood that the hazard contributed to 

would result in an injury. I find that the Secretary met his burden to prove S&S. 

5. Penalty

The Secretary specially assessed the penalty for this citation as $9,800.00. The AmCoal 

New Era Mine operates a 5,774,752 tonnage mine. Additionally, Section 75.370(a)(1) was cited 

66 times in the two years preceding issuance of the citation. As I found above, AmCoal was 

moderately negligent. At even the assessed penalty of $9,800.00, AmCoal’s business will not be 

significantly affected. As to the gravity of the violation, I found the violation was S&S. 

According to the stipulations agreed to by the parties, AmCoal demonstrated good faith in 

abatement of the violative condition. 

36 FMSHRC Page 2477
The Secretary failed to prove that the gravity of the violation was elevated, that the 

degree of operator negligence was gross or extreme, or any other unique aggravating 

circumstances to warrant a higher or “special” penalty assessment. Therefore, I assess a penalty 

in the amount of $2,902.00. 

F. Citation No. 8424603 (LAKE 2014-1054) 

On March 28, 2011, at 9:30am, MSHA Inspector Danny R. Ramsey,14 issued Citation 

No. 8424603 to AmCoal’s New Era Mine alleging a violation of 30 C.F.R. § 75.202(a) pursuant 

to Section 104(a) of the Mine Act. The regulation states 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 citation cites a violation of a mandatory safety standard. The citation alleges: 

A loose rib, measuring 9 feet long, 7.5 feet high and 3 inches to 6 

inches wide, was present on the South side of the 8th West Headgate 

unit breaker feeder. A visible crack, measuring 1 inch to 3 inches in 

width was observed between the loose rib and the solid block. This 

are is routinely traveled by miners. 

 

Ex. S-13. 

1. The Violation 

The citation alleges that an injury was reasonably likely to occur, the injury could 

reasonably be expected to be lost workdays or restricted duty, the violation was significant and 

substantial, one person could be affected, and the negligence standard was cited as moderate. Id.

Section 75.202(a) was cited 103 times in the two years preceding the issuance of the citation. 

Inspector Ramsey testified that as he was walking in the violative area he observed a lose 

rib in the feeder area of the 8th west headgate where the shuttle cars dump coal that they haul 

coal from the face area onto the belt. (Tr. 229:10-19) He testified that shuttle car operators, belt 

cleaners, examiners, and mechanics work in this area. (Tr. 229:21-25) AmCoal did not flag the 

loose rib as a hazard. (Tr. 231:7-9) AmCoal does not dispute the existence of the hazardous 

 14 Mr. Ramsey had worked for MSHA for the past nine and a half years as a roof control 

specialist inspector at the time of trial. (Tr. 226:15-20) He started working in mines in 1972. He 

worked for UMWA for five years, then worked for ten years as either a face boss or section 

foreman, then for a year and half worked as assistant mine manager. Then he was promoted to 

mine manager for six years. Then worked as a general underground mine manager for two years 

then superintendent for two years. Then he worked for Galatia (purchased by American Coal) for 

six and a half years as a longwall foreman then longwall coordinator, and had been the 

superintendent for three years. Then he went to Zeigler 11 as a section foreman for 11 months. 

Then he started working for MSHA as a coal mine inspector for four years. Then he was a 

ventilation specialist for four years. And he has been a roof control specialist for about two years. 

(Tr. 266:24 −227:24) 

36 FMSHRC Page 2478
condition, i.e. the loose rib. (Resp. Br. at 51) For the reasons stated above, I find that AmCoal 

violated Section 75.202(a). 

 

2. Negligence 

Inspector Ramsey assessed the violation as involving moderate negligence. As stated 

above, moderate negligence is when “[t]he operator knew or should have known of the violative 

condition or practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d). Inspector 

Ramsey testified that he designated the citation as moderate negligence because the violative 

condition was not in the examiner’s book, and he did not designate the negligence as high 

because it looked like a fresh crack so it had not been there for an extended period of time. (Tr. 

235-236:21-2) He also testified the loose rib was obvious and easily seen. (Tr. 230:20) 

Despite the fact that Inspector Ramsey could not tell how long the condition existed or 

who knew of the violative condition (Tr. 250:15-251:5), belt examiners walk the entire belt on 

both sides and should have seen the cracked rib. (Tr. 249:15-16) However, the unit was idle (Tr. 

255:9) and the crack in the rib appeared recent. (230:24 − 231:6; 250:15 − 251:5) The inspector 

had no personal knowledge that any mechanics or workers on the feeder had been working or 

when they were to start working. (Tr. 255:20 − 256:4) 

Despite the fact that the unit was idle, due to the obvious nature of the cracked rib and the 

fact that belt examiners would be in the vicinity and should have seen the violative condition, I 

agree that the citation was properly designated as moderate negligence. 

3. Gravity

The gravity analysis focuses on factors such as the likelihood of an injury, the severity of 

an injury, and the number of miners potentially injured. Inspector Ramsey anticipated lost work 

days, which probably could have been designated as permanently disabling. (Tr. 232:25 − 233:3) 

He testified that the hazard was the rib falling on the people in the area causing injury. (Tr. 

232:11-12) An injury could include broken bones, contusions, cuts, and scrapes. Id. It appeared 

recent because there was no visible rock dust behind it. (Tr. 231:1-6) I find that there is a 

reasonable likelihood that the injury in question will be of a reasonably serious nature and agree 

with the determination that the injury could reasonably be expected to be lost workdays or 

restricted duty. 

4. Significant and Substantial

As stated above, I have already determined that there was a violation of a mandatory 

safety standard. Additionally, I determined there is a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. A measure of danger to safety, a discrete safety 

hazard, was contributed to by the damaged rib, which could result in injuries to a miner or 

miners. What is left to be determined is whether there was a reasonable likelihood that the hazard 

contributed to will result in an injury. 

Inspector Ramsey testified that in the process of normal mining, people are going to 

travel the area routinely. This rib was loose, big, and cracked; it was going to fall. (Tr. 253:4-7) 

36 FMSHRC Page 2479
He testified that there was also machinery running that could vibrate and cause the rib to fall. 

(Tr. 232:18-22) He also testified that he designated it as potentially affecting one person because 

there is usually no more than one person traveling through the area at a time. (Tr. 235:17-20) 

Additionally, Inspector Ramsey testified that the rib was pried down easily, which indicated to 

him that it was loose and could have easily fallen. (Tr. 23317-25) 

Inspector Ramsey testified that people traveled in the violative area routinely (Tr. 253:4-

7), for example, examiners, belt cleaners, belt mechanics, and greasers (Ex. R-12). However, the 

unit was idle (Tr. 255:9), and the crack in the rib appeared recent. (Tr. 230:24 − 231:6; 250:15 −

251:5) Nonetheless, I find that the Secretary met his burden to prove that the S&S designation 

was warranted for this citation. 

5. Penalty 

The Secretary specially assessed the penalty for this citation at $9,800.00. The AMCoal 

New Era Mine operates a 5,774,752 tonnage mine. Additionally, Section 75.202(a) was cited 103 

times in the two years preceding the issuance of the citation. As I found above, AmCoal was 

moderately negligent. At even the assessed penalty of $9,800.00, AmCoal’s business will not be 

significantly affected. As to the gravity of the violation, I found the violation was S&S. 

According to the stipulations agreed to by the parties, AmCoal demonstrated good faith in 

abatement of the violative condition. 

The Secretary failed to prove that the magnitude of the gravity or the degree of operator 

negligence was gross or extreme, or any other unique aggravating circumstances to warrant a 

higher or “special” penalty assessment. Therefore, I assess a penalty in the amount of $2,902.00. 

G. Citation No. 8427550 (LAKE 2014-1055) 

On July 11, 2011, at 11:45am, MSHA Inspector James Rusher, issued Citation No. 

8427550 to AmCoal’s New Era Mine alleging a violation of 30 C.F.R. § 75.400 pursuant to 

Section 104(a) of the Mine Act. The regulation states that “[c]oal 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.” 30 C.F.R. § 75.400. The violation is for a mandatory safety standard. (Tr. 

151:13-16) The citation alleges: 

There is an accumulation of spilled loose coal and coal dust (dry) 

that measured in depths of 4” to 6” deep on the floor of the No. 2 

and 3 entries in the 9th West, unit, mmu 008-0. Additionally [,] [t]he 

roof, left and right coal ribs of both the No. 2 and No. 3 entries has 

not been rockdusted. This area in the No. 2 entry begins at 

approximately tag no. 8320” and extends inby to the last row of 

roof bolts at tag No. 8420”. This is a distance of about 100’[.] In the 

No. 3 entry, the roof, left and right coal ribs need to be rock dusted 

and the floor scooped to clean up 4” to 6” of loose coal and coal 

dust. This begins about tag No. [8200]” inby to about tag No. 

36 FMSHRC Page 2480
8300’. No one was observed cleaning or rock dusting until this 

citation was issued. 

Ex. S-15. 

1. The Violation

The citation alleges a reasonable likelihood that an injury would occur, the injury could 

reasonably be expected to be lost workdays or restricted duty, the violation was significant and 

substantial, one person could be affected, and the negligence standard was cited as moderate. Id. 

The violative area had previously been mined by AmCoal and the coal spillage had not 

been cleaned up. (Tr. 152:8-12) The coal accumulated four to six inches deep in number 2 and 

number 3 entries. Id. Inspector Rusher testified that the direct violation of Section 75.400 went 

for a distance of 100 feet in the number 3 entry. (Tr. 151:25 −152:1) The principal reason 

Inspector Rusher issued the citation was because AmCoal chose to move the belt and power 

before choosing to do the safety work. (Tr. 179:18-22) AmCoal does not dispute the 

accumulations, but disagrees with its extensiveness. (Tr. 175:12-14) Mike Smith,15 witness for 

AmCoal, testified that the depth was about two to three inches, and the further you got away 

from the center it will feather out to less than an inch. (Tr. 203:2-9) 

Inspector Rusher testified that the area that had been previously mined had not been rock 

dusted and appeared black. (Tr. 152: 12-14) Mr. Smith, however, testified that the coal ribs in the 

number 2 and 3 entry were hand dusted. (Tr. 220:20-22) The weight of evidence supports my 

conclusion that the Secretary failed to meet his burden to show that the roof and ribs of the entry 

were not rock dusted. 

For the reasons stated above, I find that AmCoal violated Section 75.400 of the Mine Act 

for the coal spillage, but not for failing to rock dust. 

2. Negligence

Inspector Ramsey assessed the violation as involving moderate negligence. As stated 

above, moderate negligence is when “[t]he operator knew or should have known of the violative 

condition or practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3(d). Inspector 

Rusher testified that he designated the citation as moderate negligence, as opposed to a higher 

negligence, because it seemed as though AmCoal was hurrying to do the power move, not that it 

was a modus of operation they would normally do. (Tr. 163-164:22-3) He also testified that the 

15 At the time of the trial, Michael Smith worked for the University SIU mining 

engineering department and resource development. (Tr. 195:19-25) He was studying dust control 

and trying to help the different coal mines with compliance with federal regulations with dust 

and trying to minimize dust exposure to miners. Id. He started that job on December 15, 2010. 

(Tr. 196:2-3) Before that worked for American Coal from 2003-2011. (Tr. 196:4-7). He was in 

the safety department and traveled with the federal and state mine inspectors, as well as tried to 

help the mine be in compliance with regulations. (Tr. 196:11-14) He was also part of the mine 

rescue team for 21 years between both mines. (Tr. 196-197:20-1) 

36 FMSHRC Page 2481
condition was very obvious. (Tr. 158:13-14) The violative condition existed and should have 

been discovered prior to the power move. (Tr. 164:4-6) Additionally, Inspector Rusher had given 

prior safety talks about this type of condition before to operators of the mine. (Tr. 164:22-25) 

Because the coal accumulation was obvious, and because someone of authority made the 

decision to move the belt before cleaning the coal accumulation, I agree that the negligence 

determination is moderate. 

3. Gravity

The gravity analysis focuses on factors such as the likelihood of an injury, the severity of 

an injury, and the number of miners potentially injured. Inspector Rusher testified that he 

believed a fire hazard existed. (Tr. 152:15-19) When giving out the citation, Inspector Rusher 

testified that he thought the coal spillage and oxygen formed two sides of the fire triangle − all 

that was left was an ignition source. (Tr. 160:1-8) Inspector Rusher testified that if an ignition 

did occur resulting in a fire or explosion, miners could get hurt or killed by the initial blast, or the 

fire could consume all the oxygen in the atmosphere. (Tr. 161: 25 − 162:5) I find that the 

resulting injury from a fire would be serious and agree that the resulting injury could reasonably 

be expected to cause lost workdays or restricted duty. 

4. Significant and Substantial

As stated above, I have already determined that there was a violation of a mandatory 

safety standard. Additionally, I determined there is a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. A measure of danger to safety, a discrete safety 

hazard, was contributed to by the coal accumulation, which could result in injuries to a miner or 

miners. What is left to be determined is whether there was a reasonable likelihood that the hazard 

contributed to will result in an injury. 

Inspector Rusher believed that there were two sides of a fire triangle in the violative area 

and all that was left was the ignition source. (Tr. 160:1-8) The diesel equipment in the area being 

used to bring the power transformer up provided a potential ignition source. (Tr. 160:20 − 161:6; 

183:5-7) However, Inspector Rusher admitted that if there was diesel equipment in the area, it 

would not be allowed to operate above 302 degrees Fahrenheit. (Tr. 176:11-20) The ignition 

temperature of coal dust is above 400 degrees Fahrenheit. Id. He also testified that there was no 

methane in the section that day (Tr. 182:5-7), and that there was no “float coal dust” mentioned 

in the cite notes. (Tr. 170:5-8) The Secretary did not prove the existence of an ignition source. 

Accordingly, I find that the Secretary failed to meet his burden to prove by a 

preponderance of evidence that there was a reasonable likelihood that the hazard contributed to 

will result in an injury. Therefore, I find that the citation was not properly designated as S&S. 

5. Penalty

The Secretary specially assessed the penalty for this citation as $9,800.00. The AMCoal 

New Era Mine operates a 5,774,752 tonnage mine. As I found above, AmCoal was moderately 

negligent. At even the assessed penalty of $9,800.00, AmCoal’s business will not be 

36 FMSHRC Page 2482
significantly affected. As to the gravity of the violation, I found the violation was not S&S. 

According to the stipulations agreed to by the parties, AmCoal demonstrated good faith in 

abatement of the violative condition. 

The Secretary failed to prove that the magnitude of the gravity or the degree of operator 

negligence was gross or extreme, or any other unique aggravating circumstances to warrant a 

higher or “special” penalty assessment. Therefore, I assess a penalty in the amount of $745.00. 

WHEREFORE, it is ORDERED that AmCoal pay a penalty of $9,782.00 within thirty 

(30) days of the filing of this decision.16

/s/ L. Zane Gill

L. Zane Gill 

Administrative Law Judge 

Distribution: 

 Ryan L. Pardue, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 

800, Denver, Colorado 80202 

Jason W. Hardin, Esq., Fabian & Clendenin, 215 South State Street, Suite 1200, Salt Lake City, 

Utah 84111-2323 

16 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 2483
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 

September 11, 2014 

DECISION

Appearances: Leigh Burleson, Esq., Office of the Solicitor, U.S. Department of Labor, 

Kansas City, Missouri, for Petitioner; 

Jeffrey A. Sar, Esq., Baron, Sar, Godwin & Lohr, Sioux City, Iowa, for 

Respondents. 

Before: Judge Manning 

These cases are before me upon petitions for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), 

against Higman Sand and Gravel and Mike Huber 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 Sioux 

City, Iowa, and filed post-hearing briefs. 

Higman Sand and Gravel operates a permanent wash plant (the “Plant”) in Washta, Iowa, 

on an intermittent basis. These cases involve Citation No. 6550983, which was issued on May 

16, 2011, under section 104(d)(1) of the Mine Act. 30 U.S.C. § 814(d)(1). The Secretary 

proposed a penalty of $3,000.00 under his special assessment regulation against Higman Sand & 

Gravel and a penalty of $2,200.00 against Mike Huber under section 110(c) of the Mine Act. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

HIGMAN SAND AND GRAVEL, INC., 

 Respondent 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

MIKE HUBER, employed by 

 HIGMAN SAND AND GRAVEL, INC., 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. CENT 2012-080-M 

A.C. No. 13-02346-269803 

HSG-Perm Washta Plant 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 2013-701-M 

A.C. No. 13-02346-330309 A 

HSG-Perm Washta Plant 

36 FMSHRC Page 2484
I. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

On May 16, 2011, MSHA Inspector Howard W. Wood issued Citation No. 6550983 

under section 104(d)(1) of the Mine Act, alleging a violation of section 56.12032 of the 

Secretary’s safety standards. (Ex. G-3). The citation alleges that a 480 volt energized switch box 

upon a stacker conveyor was damaged in such a way that the door did not close completely, 

leaving an opening of about 4 inches. The door to the switch box includes push buttons that 

control the stacker. The citation further alleges that there was standing water in the area and that 

miners access the area at least two times a day. The citation states that miners informed the 

inspector that this condition existed for at least one month and that the operations manager was 

informed of the condition at least one week before the inspection. 

Inspector Wood determined that an injury was reasonably likely to occur and that such an 

injury could reasonably be expected to be fatal. Further, he determined that the violation was 

Significant and Substantial (“S&S”), the operator’s negligence was high, and that one person 

would be affected. Section 56.12032 of the Secretary’s safety standards provides that 

“[i]nspection and cover plates on electrical equipment and junction boxes shall be kept in place 

at all times except during testing or repairs.” 30 C.F.R § 56.12032. The Secretary proposed a 

penalty of $3,000.00 against Higman Sand & Gravel under his special assessment regulation at 

section 100.5. 30 C.F.R. § 100.5. 

The Secretary also brought a civil penalty case against Mike Huber, a superintendent and 

operations manager with Higman Sand & Gravel, for the same alleged violation. This proceeding 

was brought under the authority of section 110(c) of the Mine Act. 30 U.S.C. § 820(c). The 

Secretary proposed a penalty of $2,200.00 against Huber. 

I find that Mike Huber did not violate section 110(c) and therefore the civil penalties 

assessed against him are vacated. I also modify Citation No. 6550983 to a 104(a) citation with 

moderate negligence. 

Summary of the Evidence

Inspector Wood testified that when he inspected the No. 220 stacker conveyor he noticed 

that the energized electrical switchbox attached to the conveyor was damaged. (Tr. 19). He 

photographed the damaged switchbox, which was bent on the bottom right corner. (Ex. G-2). He 

assumed that the box was hit by a piece of equipment. As a result of the damage, the door to the 

electrical box did not fully close. He estimated that the distance between the door and cabinet of 

the box in the bottom right corner was 3 to 4 inches. (Tr. 20, 24-25; Ex. G-2). He did not 

measure the width of the opening. (Tr. 41). The circuits in the electrical box carry 480 volts of 

current. The inspector believed that a miner accessed the box at least twice a day to turn the 

conveyor on and off. (Tr. 25, 26). 

The conveyor stacks sand, which is often wet. Inspector Wood testified that he was 

concerned about water and sand dripping off the bottom of the belt, entering the electrical box, 

shorting out the box, and energizing the cabinet of the box. (Tr. 20, 25-26). He observed puddles 

36 FMSHRC Page 2485
of water upon the ground in the vicinity of the electrical box and there was wet sand on top of the 

box. (Tr. 21; Ex. G-2). According to the inspector, the cabinet and door of the box could become 

energized if wet sand accumulated upon the contacts within the box. (Tr. 25). 

 Based upon his observations and his conversation with the foreman at the plant, Inspector 

Wood issued Citation No. 6550983 under section 104(d)(1) of the Mine Act. He determined that 

the violation was serious and that an injury was reasonably likely based upon the conditions he 

observed. (Tr. 31). He determined that any injury was reasonably likely to be fatal because the 

area was wet, the box was metal, there were live 480 volt circuits in the box, and miners must 

open the box to turn the conveyor on or off twice a day. (Tr. 32). He further determined that the 

violation was S&S and one person would be affected. He considered the violation to be the result 

of Higman’s high negligence because Larry Holzman, the foreman, told him that the box was in 

that condition for at least one week. Although Holzman requested that the electrical box be 

replaced a week before the inspection, Higman did not purchase a new one. (Tr. 32-34, 74-75). 

Holzman’s supervisor was Mike Huber and according to the inspector, Huber told Holzman to 

try to straighten the existing box. (Tr. 35).1

 

Inspector Wood recommended that MSHA file a penalty proceeding against Huber 

because he was the production supervisor, had the authority to purchase supplies, and failed to 

order a new electrical box to correct the hazardous condition. (Tr. 36-37). The inspector testified 

that he did not know whether Huber saw the damaged electrical box or knew the extent of the 

damage. (Tr. 37-38, 40-41, 50). Inspector Wood testified that Huber was not at the plant the day 

of the subject inspection. 

Jason Coombs, a former assistant production manager at the plant, worked for Higman 

when the cited electrical box was damaged and when the subject citation was issued. He testified 

that the box was damaged around June 2009 when a loader operator backed into it. (Tr. 107-08). 

He did not believe that the damage to the box created a safety hazard. (Tr. 150). This damaged 

electrical box was not cited by MSHA until the May 2011 inspection. 

Coombs further examined the electrical box after it was removed from the stacker 

conveyor and stated that there was a lip around the cabinet of the box that prevented rain or 

moisture from entering the box. (Tr. 115, 138-39; Ex. R-103(f)). He measured the opening 

between the door and the cabinet to be less than 1 inch. (Tr. 117; Ex. R-103(i)). He testified that 

it was possible that the opening in the box was different when he examined it than when the 

inspector cited it but, because the box was able to close and latch, it could not have been 

substantially different. (Tr. 128, 130).2

 Coombs further testified that, even if there was water in 

the area, a miner could not get a hand into the box to be shocked by energized parts. (Tr. 142). 

 1

 Inspector Wood initially determined that the violation was the result of Higman’s 

“reckless disregard” but he modified the citation to high negligence because he did not talk to 

Huber. (Tr. 38). 

2

 Higman used the box in the damaged condition to operate the sand conveyor and the 

box will not energize the conveyor unless the door is closed and latched. The damage did not 

affect the ability of miners to close and latch the door. 

36 FMSHRC Page 2486
 Mike Huber is the production manager for Higman. He oversees a number of plants and 

pits for Higman. (Tr. 153-54). His “second in command” is Jason Coombs. Larry Holzman 

became the foreman of the Washta Plant in April 2011. (Tr. 154-55). Huber testified that he 

never saw the subject electrical box prior to the MSHA inspection on May 16, 2011, but he knew 

that a loader damaged it. (Tr. 155). Holzman’s predecessor, Randy Rasmussen, accidently 

backed into the electrical box. Huber testified that Rasmussen told him that the damage was “just 

a cosmetic issue.” Id. Huber stated that Higman did not move the cited sand conveyor after the 

loader damaged the electrical and that MSHA inspected it several times without issuing a 

citation. (Tr. 156). Because the electrical box was neither cited by MSHA nor mentioned as a 

safety issue, Huber did not think about the box until Holzman mentioned it shortly after he was 

hired in April 2011. (Tr. 157). Huber testified that he believed that the damage Holzman referred 

to was the “cosmetic” damage that Rasmussen told him about. (Tr. 158). He testified that he did 

not know that the electrical box presented a safety hazard and, if he had reason to believe that a 

hazard was present, he would have replaced the box. (Tr. 158). 

 Huber does not believe that the damaged electrical box presented a safety hazard to 

miners. (Tr. 169). First, moisture was unable to enter the box. Second, the continuity and 

resistance tests performed upon the box prior to the MSHA inspection demonstrate that the box 

was fully grounded. (Tr. 168-69, Ex. R-104). If water or wet sand did enter the box, the circuit 

breaker would cut off all power. (Tr. 182-83). Huber believed that MSHA inspectors examined 

the sand stacker conveyor including the electrical box during past inspections. Because these 

inspectors did not issue any citations for the condition of the electrical box, Huber assumed that 

it complied with the safety standards. (Tr. 173-74, 177). He never saw the box after the loader 

backed into it. The operations he supervises are spread out over 100 miles and they include about 

400 conveyors. (Tr. 175). When it was reported to him that a loader damaged the box, but that 

the damage was cosmetic, he had no reason to disbelieve that statement. Id. 

 Larry Holzman started working for Higman as a foreman at the Washta Plant in April 

2011. (Tr. 186-87). He was present during Inspector Wood’s May 2011 inspection. He testified 

that the opening in the electrical box caused by the loader was too narrow for a person to put 

their hand or fingers into the box. (Tr. 189). The gap was about 3/4 of an inch at its widest point. 

(Tr. 189-90, 195; Ex. R-103(g) & (i)). The presence of the “rain gutter lip” prevented extraneous 

material or someone’s fingers from entering the box. (Tr. 194-95). Holzman testified that it was 

not reasonably likely that the electrical box would injure anyone. (Tr. 190). Continuity and 

resistance testing demonstrated that the box was fully grounded. Although he recommended that 

the box be replaced, he did not believe that it was dangerous. (Tr. 192). He never indicated to 

Huber that it presented a hazard to miners. 

 Richard Lemmon, the safety superintendent with Higman, worked for the company for 

eight years. He does not work at the plant. He testified that after Rasmussen hit the electrical box 

with the loader, MSHA inspected the plant several times but issued no citations. (Tr. 200, 206-

07, 218). He also stated that he is not aware of any facts that would have alerted Huber that the 

box presented a safety hazard to miners. (Tr. 207). He testified that the condition of the electrical 

box did not create a safety hazard, but he admitted that if water entered the box and the box 

became energized, someone could be electrocuted. (Tr. 213-14, 215, 217-18). The grounding 

36 FMSHRC Page 2487
system would prevent the box from being energized in the event of a short, so a miner would not 

be shocked or electrocuted. (Tr. 220). 

Discussion and Analysis

Higman does not dispute the fact of violation for Citation No. 6550983, but does 

challenge the S&S, negligence, and unwarrantable failure designations. Mike Huber argues that 

he should not be assessed a penalty under the section 110(c) civil penalty action. 

I find that the violation was S&S.3

 Higman accepts the violation of section 56.12032. I 

find that the discrete safety hazard presented by the violation was the danger of electrifying the 

box and resulting electric shock. As is typical, it is the third element of the Mathies test that 

presents the greatest challenge. In U.S. Steel Mining Co., the Commission held that “the third 

element of the Mathies test does not require the Secretary to prove it was ‘more probable than 

not’ an injury would result.” 18 FMSHRC 862, 865 (citation omitted). The Commission has also 

long held that “[t]he fact that injury has been avoided in the past in connection with a particular 

violation may be ‘fortunate, but not determinative.’” U.S. Steel, 18 FMSHRC at 867 (quoting 

Ozark-Mahoning Co., 8 FMSHRC 190, 192 (Feb. 1986)). 

The Commission reiterated these principles in Cumberland Coal Resources, LP, 33 

FMSHRC 2357 (Oct. 2011), and Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 

1257 (Oct. 2010). In Musser Engineering, the Commission rejected the mine operator’s 

argument that “there must be a reasonable likelihood that the violation will cause injury.” 32 

FMSHRC at 1280-81. Instead, the Commission held that the “test under the third element [of 

Mathies] is whether there is a reasonable likelihood that the hazard contributed to by the 

violation will cause injury.” Id. 

Assuming continued mining operations, the hazard contributed to by the violation was 

reasonably likely to lead to a serious injury. The cited cover closed and latched, preventing 

miners from directly contacting the interior circuit. I credit Inspector Wood’s testimony, 

however, that a miner could be shocked because the gap where the door met the cabinet could 

allow water to enter the box, contact the circuits, cause a short, and energize the box. This gap 

was in the bottom corner of the box, there was no foreign material in the box at the time of 

inspection, and the box had a lip to prevent material from entering; Higman, however, did not 

3

 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 2488
plan to replace the electrical box. Assuming continued mining operations, I find that the violation 

and conditions in the area could degrade to allow water, sand, and other materials to enter the 

electrical box through the opening. This material could short the electrical circuit and the 

grounding system could fail to prevent current from energizing the box. Miners access the box at 

least twice a day. The electrical components in the box carry 480 volts of electricity. If this 

current energized the box as a result of foreign material entering the box through the opening, 

anyone who contacted the box would suffer a serious electrical shock, which is reasonably likely 

to cause a serious or fatal injury. I find that the risk of death or serious injury was not so remote 

as to fail the third element of the Mathies test. Consequently, I find that the violation was S&S. 

 

 Looking at all the facts and circumstances of this case, I find that the violation was the 

result of Higman’s moderate negligence, not its high negligence or unwarrantable failure. 4 The 

cited condition existed since June 2009 when a loader backed into the box. Although the 

violation existed for more than two years and was in plain sight, the plant did not move in that 

time and MSHA never cited the condition, despite conducting several inspections. The operator 

knew of and did not abate the condition, but I credit the testimony of Holzman, Coombs, 

Lemmon, and Huber that they did not believe that the damage to the electrical box presented a 

hazard and that Higman did not know that the condition violated the standard. None of the 

photographs the parties introduced at the hearing are conclusive and witness accounts differ 

concerning the condition of the box, but the damage was not extensive because the door still 

latched.5

 The Secretary did not show that the operator was on notice that greater efforts were 

necessary for compliance with section 56.12032. Higman should have corrected the cited 

condition and therefore the violation was the result of its moderate negligence. Citation No. 

6550983, however, was not the result of Higman’s unwarrantable failure because its conduct was 

not aggravated. 

 4

 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). 

5

 A shadow obscures the damaged area of the box in the Secretary’s photo. (Ex. G-2). 

The photos presented by Respondents were taken after the box was removed from the sand 

conveyor. (Ex. R-103) 

36 FMSHRC Page 2489
I find that the Secretary did not fulfill his burden6

 to show that Huber knew or had reason 

to know of the cited condition that violated section 56.12032 and Huber therefore did not violate 

section 110(c).7

 I credit Huber’s testimony that he believed that the condition cited in Citation 

No. 6550983 constituted cosmetic damage that neither violated the Secretary’s safety standards 

nor posed a danger to miners. Huber’s subordinates alerted him of the damage, but did not 

suggest that it was dangerous or violative. Because the electrical box was neither cited by MSHA 

nor mentioned as a safety issue, Huber lacked notice that it required replacement. He did not 

work on-site and supervised all Higman’s operations that included 400 conveyors spread over 

100 miles. Huber did not see the cited condition; he relied upon the opinion of the miners he 

trusted who did not believe the condition created a hazard. Although Huber knew that the box 

was damaged, the Secretary did not present evidence to show that Huber knew or had reason to 

know that the cited condition created a hazard or violated the Secretary’s safety standards. His 

actions did not exhibit aggravated conduct or greater than ordinary negligence. The civil penalty 

proposed by the Secretary against Mike Huber in CENT 2013-701-M under section 110(c) is 

VACATED. 

6

 In order to find individual liability in a 110(c) action, the Secretary bears the burden to 

show by a preponderance of the credible evidence that the conduct at issue was aggravated. 

Maple Creek Mining, 27 FMSHRC 555, 570 (2005). 

7

 The Commission summarized the law applicable to a Section 110(c) violation as 

follows: 

Section 110(c) of the Mine Act provides that, whenever a corporate 

operator violates a mandatory health or safety standard, a director, officer, or 

agent of such corporate operator who knowingly authorized, ordered, or carried 

out the violation shall be subject to an individual civil penalty. 30 U.S.C. § 

820(c). The proper legal inquiry for determining liability under section 110(c) is 

whether the corporate agent knew or had reason to know of a violative 

condition. Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff'd on other 

grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983); accord 

Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362-64 (D.C. Cir. 

1997). To establish section 110(c) liability, the Secretary must prove that an 

individual knew or had reason to know of the violative condition, not that the 

individual knowingly violated the law. Warren Steen Constr., Inc., 14 FMSHRC 

1125, 1131 (July 1992) (citing United States v. Int'l Minerals & Chem. Corp., 402 

U.S. 558, 563 (1971)). A knowing violation occurs when an individual “in a 

position to protect employee safety and health fails to act on the basis of 

information that gives him knowledge or reason to know of the existence of a 

violative condition.” Kenny Richardson, 3 FMSHRC at 16. Section 110(c) 

liability is predicated on aggravated conduct constituting more than ordinary 

negligence. BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992). 

Cougar Coal Company, 25 FMSHRC 513, 516 (Sept. 2003). 

36 FMSHRC Page 2490
II. APPROPRIATE CIVIL PENALTIES

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. I have considered the Assessed Violation History Report, which was 

submitted by the Secretary. (Ex. G-1). MSHA issued 15 citations at the plant in the 15 months 

prior to May 16, 2011, and none of the violations were S&S. At all pertinent times, the HSGPerm Washta Plant was a small operation and Higman Sand and Gravel, Inc., was a small mine 

operator. The violation was abated in good faith. The penalty assessed in this decision will not 

have an adverse effect upon the ability of Higman Sand & Gravel to continue in business. The 

gravity was serious and the negligence was moderate. 

III. ORDER

For the reasons set forth above, Citation No. 6550983 is MODIFIED to a section 104(a) 

citation with moderate negligence and Higman Sand & Gravel, Inc., is ORDERED TO PAY the 

Secretary of Labor the sum of $1,250.00 within 30 days of the date of this decision.8

 The case 

against Mike Huber, CENT 2013-701-M, is hereby DISMISSED. 

/s/ Richard W. Manning

Richard W. Manning 

Administrative Law Judge 

Distribution: 

Leigh Burleson, Esq., Office of the Solicitor, U.S. Department of Labor, Two Pershing Square 

Building, 2300 Main Street, Suite 1020, Kansas City, MO 64108 

Jeffrey A. Sar, Esq., Baron, Sar, Godwin, Gill & Lohr, PO Box 717, Sioux City, IA 51102 

8

 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 2491
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 

September 19, 2014 

DECISION AND ORDER

Appearances: Emily O. Roberts, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, TN, for Petitioner; 

Jake Huffman, Youngquist Brothers Rock, Inc., Myers, FL, pro se litigant, 

for Respondent 

Before: Judge L. Zane Gill 

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

§ 801 et seq. (1994) (“Mine Act” or “Act”), involves one section 104(a) citation, 30 U.S.C. §

814(a), issued by the Department of Labor’s Mine Safety and Health Administration (“MSHA”) 

to Youngquist Brother’s Rock, Inc. (“Youngquist”).1 The parties presented testimony and 

documentary evidence at the hearing held in Fort Myers, Florida on September 24, 2013. 

The contested issues at trial for Citation No. 8642418 included whether MSHA had 

jurisdiction under the Act to issue the Citation to Youngquist and whether Youngquist violated 

30 C.F.R. § 56.15005 as alleged in the Citation. 

For the reasons set forth below, I find that MSHA did have jurisdiction to issue the 

Citation under the Mine Act. I also find that Youngquist violated Section 56.15005 under the 

Act, the negligence was moderate, the injury was highly likely to result in fatality, and I find that 

the citation was significant and substantial. I assess a penalty in the amount of $6,458.40.

1

 On July 25, 2013, I signed a Decision Approving Partial Settlement for the remaining 

eight Citations for Docket No. SE 2012-0266 M, and ordered Youngquist Brothers, Inc. to pay a 

total sum of $3,278.00. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

YOUNGQUIST BROTHERS ROCK, INC., 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. SE 2012-0266 M 

A.C. No. 08-01203-279931 

Mine: Youngquist Brothers Rock Inc. 

36 FMSHRC Page 2492
I. Stipulations 

At the hearing, the Secretary read the Stipulations into the record: (Tr. 6:6-22) 

1. The respondent owns and operates a surface mine producing sand and gravel lime rock

products. The mine, Youngquist Brothers Rock, Inc., ID number 08-01203, is located in

Lee County, Florida.

2. Employees at Youngquist Brothers Rock, Inc., Mine ID 08-01203 worked 80,543 hours

in 2011.

3. Copies of 104(a) citation number 8642418 and 107(a) order number 8642417 were

served on the respondent by an inspector employed by the Mine Safety and Health

Administration.

4. The Respondent timely contested the 104(a) citation number 8642418.

5. The proposed penalty will not affect the respondent’s ability to continue business.

Prior to the hearing, the parties also stipulated to the Commission’s jurisdiction to hear and rule 

on this case in a Joint Prehearing Report received by the Court on September 18, 2013, which 

states: 

Jurisdiction exists because the Respondent was an operator of a 

mine, I.D. Number 08-01203, as defined in section 3(d) of the 

Mine Act, 30 U.S.C. § 802(d), and the products of that mine 

entered into the stream of commerce or the operations or products 

thereof affected commerce within the meaning and scope of 

Section 4 of the Mine Act, 30 U.S.C. § 803, at all times relevant to 

these proceedings. 

Joint Prehearing Report at 1. 

II. Jurisdiction

A. Statutory Definition of “coal or other mine”

Section 3(h)(1) of the Mine Act defines of “coal or other mine” as follows: 

[C]oal or other mine means (A) an area of land from which 

minerals are extracted in nonliquid form or, if in liquid form, are 

extracted with workers underground, (B) private ways and roads 

appurtenant to such area, and (C) lands, excavations, underground 

passageways, shafts, slopes, tunnels and workings, structures, 

facilities, equipment, machines, tools, or other property including 

impoundments, retention dams, and tailings ponds, on the surface 

36 FMSHRC Page 2493
or underground, used in, or to be used in, or resulting from, the 

work of extracting such minerals from their natural deposits in 

nonliquid form, or if in liquid form, with workers underground, or 

used in, or to be used in, the milling of such minerals, or the work 

of preparing coal or other minerals, and includes custom coal 

preparation facilities. 

 

30 U.S.C. § 802(h)(1). (emphasis added) 

It is well established that Congress intended this definition to be interpreted broadly. See, 

e.g., Calmat Co. of Ariz., 27 FMSHRC 617, 622 (Sept. 2005), citing S. Rep. No. 95-181, at 14 

(1977) ([I]t is the Committee’s intention that what is considered to be a mine and to be regulated 

under this Act be given the broadest possible interpretation.). However, the courts have 

recognized that the jurisdiction of the Mine Act is not without limitations. See, e.g., Sec’y of 

Labor v. Nat’l Cement Co. of Cal., Inc., et. al, 573 F.3d 788, 794-95 (D.C. Cir. 2009) (“National 

Cement”) (rejecting unreasonably expansive reading of subsection 3(h)(1)(B)); Paul v. P.B.-

K.B.B., Inc., 7 FMSHRC 1784, 1787 (Nov. 1985) (While we have recognized that the definition 

of coal or other mine provided in section 3(h) of the Mine Act is expansive and is to be 

interpreted broadly the inclusive nature of the Act’s coverage is not without bounds.); Donovan 

v. Carolina Stalite Co., 734 F.2d 1547, 1551 (D.C. Cir. 1984). 

 

In National Cement, the Court of Appeals for the D.C. Circuit discussed reasonable 

limitations on what could be considered part of a “coal or other mine under subsections 

3(h)(1)(A), (B), and (C). 573 F.3d at 793-97. The Secretary interpreted subsection (B) more 

narrowly than subsection (A). Id. at 793. She took the position that subsection (A), which covers 

extraction areas, extends to all the facilities and equipment within the boundaries of the 

extraction area, because virtually everything within an extraction area is necessarily related to 

mining activity. Id. at 794. However, she interpreted subsection (B), which covers private ways 

and roads appurtenant to extraction areas, to apply only to the ways and roads themselves. Id. 

Additionally, equipment and vehicles traveling on such roads would fall under MSHA 

jurisdiction only if they were covered under subsection (C), which covers only those facilities 

and equipment that are used in, or to be used in, or resulting from mining activities. Id. at 795. 

The D.C. Circuit found that the Secretary’s interpretation of section 3(h)(1) was reasonable and 

entitled to deference. Id. at 794-97. 

The Court in National Cement also adopted the Secretary’s interpretation that “private” 

means are “restricted to a particular group or class of persons (not to a particular person).” Id. at 

791,795. However, liability under the Mine Act requires a finding of control because only mine 

“operators” can be cited and held liable for violations. See 18 U.S.C. §§ 802(d), 814(a); Sec'y 

of Labor v. Berwind Natural Res. Corp., 21 F.M.S.H.R.C. 1284, 1293 (1999) (stating that to be 

an “operator,” an entity must have “substantial involvement” in the operation of the mine). 

Therefore, an entity cannot be held liable unless it “operates, controls, or supervises” the 

mine. 30 U.S.C. § 802(d). 

Section 3(h)(1)(A) of the Mine Act is not in issue here. What is in issue is subsection (B), 

which covers private ways and roads appurtenant to extraction areas themselves, and subsection 

36 FMSHRC Page 2494
(C) which covers equipment and vehicles that are used in or resulting from mining activities 

traveling on such roads. National Cement at 794-795. Thus, what must be determined is if the 

area is a private way, appurtenant to the mine and under the control of the mine, and that the 

truck in question is equipment used in or resulting from mining activities. 

B. The Parties’ Positions 

 On December 14, 2011, MSHA Inspector Leroy Ford2

 (“Inspector Ford”) issued Citation 

No. 8642418 to Youngquist alleging a violation of 30 C.F.R. § 56.15005. Inspector Ford 

observed a truck driver on top of his load in the bed of his truck shoveling material. Ex. S-1. The 

driver was not wearing a safety belt or line. Id. Inspector Ford testified that he had just finished 

inspecting the mine and was doing some work in his vehicle when he looked up and noticed a 

truck driver on the back of his bed about two hundred to three hundred feet from where he was 

sitting. (Tr. 24:24 – 25:6) He testified that the truck was approximately three hundred to four 

hundred feet inside the gate entrance to the mine. (Tr. 26:12-20) Inspector Ford was able to take 

a picture3 of the vehicle before it drove away. (Tr. 27:3-8) 

Immediately, Inspector Ford went straight to the office to talk to Jake Huffman4 (“Mr. 

Huffman”) and explained that he was going to issue a 107(a) imminent danger order. (Tr. 27:18-

21) Inspector Ford also testified that he wrote the Citation because he believed the property

where the truck was located belonged to the mine. (Tr. 64:22-24) Inspector Ford testified that he 

told Mr. Huffman the truck was located at the gate entrance (Tr. 28:8-9) and located on mine 

property because it was just inside the gate to the mine. (Tr. 66:24-25) If the truck driver had 

been outside of the gate, Inspector Ford noted, it would not have been under MSHA’s 

jurisdiction. (Tr. 65:2-4) 

Mr. Huffman testified that Youngquist owns two thousand acres, and that there are pieces 

of land that are leased out that MSHA does not have jurisdiction over, including the “restaurant” 

that sits on the property.5 (Tr. 51:4-10; Ex. S-4) Mr. Huffman testified that the truck in the 

picture was taken in the “restaurant” parking lot. (Tr. 51:4-10) Mr. Huffman testified that while 

the truck was on the mine property owned by Youngquist Brothers, that particular section was 

leased out. (Tr. 52:12-14) Mr. Huffman testified that truck drivers or the general public can drive 

into the dirt lot and go over into the leased “restaurant” area to have lunch. (Tr. 51:22-24) 

2

 After serving in Vietnam, Inspector Ford worked in the coal mines in Kentucky. (Tr. 

10:19-21) During his twenty-six year tenure for a surface mine (Tr. 5-13), he was a safety 

director for ten years, and worked on pretty much everything else in the mine. (Tr. 16-18) He 

also worked as a truck driver for ten years before working for MSHA. (Tr. 12:5-6) Inspector 

Ford began working for MSHA in 1998 in the metal non-metal division. (Tr. 12:8; 12:19-25) As 

of the day of the hearing, Inspector Ford worked a total of sixteen years for MSHA in Florida. 

(Tr. 13:20-21) 

3

 The picture was admitted into evidence. Ex. S-4. 

4

 At the time of the hearing, Mr. Huffman was the general manager of Youngquist 

Brothers Rock and agreed to represent the Respondent and to give testimony as required at trial. 

(Tr. 5:9-15) 

5

 The “restaurant” Mr. Huffman refers to is nothing more than a “truck that this man has 

turned into his restaurant... [that] hasn’t moved... [and] [h]e set it up on blocks.” (Tr. 75:4-9) 

36 FMSHRC Page 2495
Inspector Ford spoke to Mr. Huffman and told him that the violation occurred on his property, 

but Mr. Huffman testified that he did not bring up any issues because “it’s best not to ruffle those 

feathers.” (Tr. 60:19-22) 

Mr. Huffman, however, did admit that the land that the “restaurant” leases abuts the 

entrance and exit gate of the mine. (Tr. 77:1-3) Inspector Ford testified that he told Mr. Huffman 

at the time he wrote the imminent danger order that the truck was on his property, (Tr. 86:10-11) 

and at the time he issued the Citation there was no conversation that the area in question was a 

lunch area and not part of the mine. (Tr. 86:21-23) To Inspector Ford the area in question 

appeared to be a meals-on-wheels set up. (Tr. 66:9-12) 

C. Analysis of the Facts 

It is important to note that at no point during the hearing, (Tr. 82:12-14) or at any point 

after the hearing, did Mr. Huffman or any agent of Youngquist provide the Court with a copy of 

the lease agreement between Youngquist and the “restaurant.”6

 Nor did Mr. Huffman call the 

“restaurant” owner as a witness to leasing out a portion of the mine property. As such, there is no 

evidence on record other than trial testimony of Mr. Huffman that a lease exists, and that the area 

in question does not in fact belong to Youngquist’s mine and subject to MSHA jurisdiction. 

Indeed, other than vague testimony that the leased property to the “restaurant” was a “dirt” 

section of approximately one acre, there is no evidence on record to show that the truck in the 

picture taken by Inspector Ford was actually on the restaurant’s property.7

 Mr. Huffman did 

provide a handwritten drawing of the property, but without a lease or evidence showing where 

the actual property line existed, I cannot be certain that the truck was on any other property but 

on Youngquist’s mine property. Ex. S-4, Ex. R-1. 

Even if Respondent had put forth credible evidence that the area in question where the 

truck was located was leased property to the “restaurant,” I would still find that under National 

Cement, the area in question is subject to the jurisdiction of MSHA.8 

Mr. Huffman admitted that the land that the “restaurant” leases abuts the entrance and 

exit gate of the mine. (Tr. 77:1-3) Additionally, according to the drawing made by Mr. Huffman, 

the “restaurant” property abuts the mine property. Ex. R-1. Mr. Huffman testified that the whole 

property within the gates was owned by Youngquist (Tr. 51:4-10); that the “restaurant” was 

within Youngquist’s property gates (Tr. 77:1-3; 77:11-12); and assuming a lease does exist, the 

area in question is leased to a private party who provides food for patrons of the mine and other 

people who came onto the property. (Tr. 52:12-14) Mr. Huffman also testified that the truck 

depicted in the picture was in the “restaurant’s” dirt parking lot. (Tr. 51:9-10; Ex. S-4) The 

“restaurant” property is considered private even if it is open for business to the public because it 

6

 The Court did provide Mr. Hufffman and Youngquist the opportunity to provide a copy 

of the lease to the Court after the hearing. 

7

 Mr. Huffman made the distinction that the mine property is the area that is asphalted 

and the “restaurant” property is the dirt area. (Tr. 67:8-18) 

8

 As the litigant was pro se, I will include the National Cement reasoning in the decision 

to explain that MSHA had jurisdiction to issue Citation No. 8642418 even if the land was leased 

to the “restaurant.” 

36 FMSHRC Page 2496
is “restricted to a particular group or class of persons, namely its customers. Therefore, according 

to the above, I find that the truck in question was located on a private way appurtenant to 

Youngquist’s operations. 

Mr. Huffman testified that the distance from the scales to the road, which is directly 

outside the mine gates, is approximately four hundred to five hundred feet. (Tr. 59:17-20) The 

mine property and the “restaurant” property share this gated entrance. (Tr. 77:11-12) When Mr. 

Huffman was asked if the load on the truck in the picture appeared to be sand and gravel, Mr. 

Huffman testified that it seemed to be the color of sand and gravel in the bed of the truck in the 

picture. (Tr. 54:16-18; Ex. S-4) By looking at the picture and the hand drawing made by Mr. 

Huffman together, it appears as though the truck in question was driving from the scales towards 

the exit gates of the mine, and on his way out, the truck driver pulled over slightly off to the side 

of the paved road to level off his load. (See Ex. S-4; See Ex. R-1) I therefore conclude that the 

truck was used in and resulted from the mining activities at Youngquist. 

Youngquist’s control over the “restaurant” lot can be proven circumstantially by its 

location and testimony of Mr. Huffman. The “restaurant” is inside the mine’s gates, three 

hundred to four hundred yards away from the scale house, and adjoining the lot on which 

Youngquist’s printers and scales sit. (Tr. 77:1-3; 77:11-12; Tr. 26:12-20; Tr. 26:12-20; Ex. R-1) 

There is no barrier between the “restaurant” lot and the mine. (Tr. 79:19-21) Additionally, Mr. 

Huffman’s testimony showed that the behavior which led to Citation 8642418 is unusual because 

of the mine’s zero tolerance policy: 

They’re all aware that if they get caught in the back of their trucks, 

in any of the rock mines, we’d just forever ban you from the rock 

mines... There’s a zero tolerance for any of this. It’s an issue we 

really don’t have. They go down the road where they’re far away 

from the mines, and they do what they have to there. This is 

something that we do not see. 

(Tr. Tr. 58:25 − 59:9) 

Mr. Huffman testified that the best place for the truck drivers to level off their load would 

be four miles down the road (Tr. 59:5-9; 60:4-7), and that this was because “[w]e don’t 

encourage it anywhere in the general vicinity of the mines.” This indicates that Youngquist did 

have some control over what the truck drivers did within the mine gates.9

 

I find that MSHA did have jurisdiction to issue Citation No. 8642418 to Youngquist 

because the area where the violative condition occurred was a private way appurtenant to the 

mine under the control of the mine, and the truck in question was used in mining activities. 

9

 This is not to say that MSHA has jurisdiction of the operations of the “restaurant,” but 

over violations such as the Citation at issue in this docket. 

36 FMSHRC Page 2497
III. Citation 8642418

A. The Violation

On December 14, 2011, MSHA Inspector Leroy Ford issued Citation No. 8642418 to 

Youngquist alleging a violation of 30 C.F.R. § 56.15005. The regulation states that “[s]afety belt 

and lines shall be worn when persons work where there is a danger of falling.” Section 56.15005 

regulates a mandatory safety standard. The Citation alleges: 

One truck driver was observed on top of a load in the bed of the 

truck shoveling material. The driver was not wearing a safety belt 

or line. The fall to the ground was estimated to be a 6’ to 7’ drop. 

The truck was hauling from the scale house. The operation 

manager had signs posted all around the scale house with 

instructions to stay off the bed of the trucks. The signs were 

written in Spanish and English. This condition was a factor that 

contributed to the issuance of imminent danger order # 8642418 

[sic]. Therefore no abatement time was set. 

Ex. S-1.10

The Citation also alleges that the condition was highly likely to cause injury, that the 

injury was reasonably likely to be fatal, that the violation was significant and substantial 

(“S&S”), and the negligence standard was moderate negligence. Id. The Secretary proposed a 

penalty of $7,176.00 for this violation.11 Inspector Ford observed a truck driver on top of his load 

in the bed of his truck shoveling material. Id. Inspector Ford testified that the truck driver was 

approximately six or seven feet off of the ground, (Tr. 25:24) and the truck driver was not 

wearing a safety line, harness, belt, or anything to keep him from falling. (Tr. 26:2-5) Inspector 

Ford could tell the driver did not have safety equipment on because he had a shovel in his hand 

and he could see the truck driver moving around the back part of the bed. (Tr. 26:6-9; See also

Ex. S-4) I find that Youngquist violated Section 56.15005. 

B. 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.” 30 C.F.R. 

§ 100.3(d). “A mine operator is required [...] to take steps necessary to correct or prevent

hazardous conditions or practices.” Id. “MSHA considers mitigating circumstances which may 

include, but are not limited to, actions taken by the operator to prevent or correct hazardous 

conditions or practices.” Id. Reckless negligence is present when “[t]he operator displayed 

10 The actual imminent danger order number is 8642417. 

11 The Respondent failed to present any evidence regarding the Citation itself. The 

Respondent’s sole defense at the hearing was that MSHA lacked jurisdiction to issue the 

Citation. In fact, upon the conclusion of the Secretary’s direct examination of Inspector Ford, 

Mr. Huffman stated that “[e]verything he said is very accurate” when referring to Inspector 

Ford’s testimony. (Tr. 50:10) 

36 FMSHRC Page 2498
conduct which exhibits the absence of the slightest degree of care.” Id. High negligence is when 

“[t]he operator knew or should have known of the violative condition or practice, and there are 

no mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew or should 

have known of the violative condition or practice, but there are mitigating circumstances.” Id. 

Low negligence is when “[t]he operator knew or should have known of the violative condition or 

practice, but there are considerable mitigating circumstances.” Id. No negligence is when “[t]he 

operator exercised diligence and could not have known of the violative condition or practice.” Id. 

The Commission has provided guidance for making the negligence determination in A. H. 

Smith Stone Co., stating that: 

Each mandatory standard thus carries with it an accompanying 

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

failure to satisfy the appropriate duty can lead to a finding of 

negligence... In this type of case, we look to such considerations as 

the foreseeability of the miner’s conduct, the risks involved, and 

the operator’s supervising, training, and disciplining of its 

employees to prevent violations of the standard in issue. 

5 FMSHRC 13, 15 (Jan. 1983) (citations omitted). 

Mitigation is something the operator does affirmatively, with knowledge of the potential 

hazard being mitigated, that tends to reduce the likelihood of an injury to a miner. This includes 

actions taken by the operator to prevent or correct hazardous conditions. 

Inspector Ford marked the citation as moderate negligence because he explained to Mr. 

Huffman at the time that he felt like they did everything they could possibly do as a company 

because they had signs. (Tr. 38:14-17) Inspector Ford considered the signs to be mitigation. (Tr. 

38:22-25) 

Mr. Huffman testified that he is aware that there is an issue that some of the truck drivers 

want to get into the bed of their trucks. (Tr. 57:1-5) Youngquist had seven signs at the scale 

house, in English and Spanish, telling the truck drivers not to get inside the beds of the trucks. 

(Tr. 21:7-10; 21:13-15; 56:23-25; 51:17-19) Mr. Huffman testified that there is a zero tolerance 

policy for getting onto the truck beds at Youngquist and that the drivers go down the road four 

miles where they are far from the mine to level the loads. (Tr. 59:5-9; 60:4-7) 

Youngquist, however, does not provide a safe place for the drivers to level the load on the 

mine property. (Tr. 59:11-13) They do not provide safety lines, belts, or harnesses. (Tr. 59:14-

16) Truck drivers are not advised of safe methods of tying off on the mine property. (Tr. 60:8-

10) There are no signs that say that truck drivers must wear a belt to line if they need to tarp. (Tr. 

58:9-11) There is no site-specific hazard awareness training for tying off. (Tr. 58:12-15) There 

are no trainings or signs for acceptable safety methods for leveling the load of the truck bed. (Tr. 

58:16-18) There are no trainings or signs about acceptable safety methods for leveling the load 

of the truck bed. (Tr. 58:16-18) I find that given the known issue to Youngquist, they should 

36 FMSHRC Page 2499
have training for safely tying off and safely leveling the load of the truck bed. For the reasons 

stated above, I find the negligence to be moderate. 

C. Gravity

 The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is 

often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 

1541, 1549 (Sep. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983), 

aff'd, 736 F.2d 1147 (7th Cir. 1984) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 

(April 1987)). The seriousness of a violation can be examined by looking at the importance of 

the standard which was violated and the operator’s conduct with respect to that standard, in the 

context of the Mine Act’s purpose of limiting violations and protecting the safety and health of 

miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ). The gravity 

analysis focuses on factors such as the likelihood of an injury, the severity of an injury, and the 

number of miners potentially injured. The Commission has recognized that the likelihood of 

injury is to be made assuming continued normal mining operations without abatement of the 

violation. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). 

Inspector Ford testified that the truck driver was approximately six or seven feet off of 

the ground, (Tr. 25:24) and the truck driver was not wearing a safety line, harness, belt, or 

anything to keep him from falling. (Tr. 26:2-5) Inspector Ford could tell the driver did not have 

safety equipment on because he had a shovel in his hand and he could see the truck driver 

moving around the back part of the bed. (Tr. 26:6-9; See Ex. S-4) The safety harnesses tether the 

drivers to the truck itself to prevent falls. (Tr. 33:22-25) From what Inspector Ford observed, the 

truck driver could fall over the side, hit the ground head first, and probably break his neck. (Tr. 

32:7-13) The driver could have been killed because he was high enough off of the ground. (Tr. 

32:7-13) Based on the above, I agree that the injury is serious in nature and that the resulting 

injury could result in a fatality. 

D. Significant and Substantial 

The Secretary bears the burden of proving all elements of a citation by a preponderance 

of the evidence. In re: Contests of Respirable Dust Sample Alteration Citations: Keystone 

Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d 151 F.3d 1096 (D.C. Cir. 1998); Jim 

Walter Resources, Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The Secretary’s 

burden is to prove the violations and related allegations, e.g., gravity and negligence, by a 

preponderance of the evidence.”) Some of the citations in dispute and discussed below have been 

designated by the Secretary as significant and substantial (“S&S”). 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). 

The question of whether a particular violation is S&S must be based on the particular facts 

surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio 

Coal Co., 9 FMSHRC 2007 (Dec. 1987). S&S enhanced enforcement is applicable only to 

violations of mandatory health and safety standards. Cyprus Emerald Res. Corp. v. FMSHRC,

195 F.3d 42, 45 (D.C. Cir. 1999). 

36 FMSHRC Page 2500
In Mathies Coal Co., the Commission established the standard for determining whether a 

violation was S&S: 

In order to establish that a violation of a mandatory safety standard 

is significant and substantial under National Gypsum, the Secretary 

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

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

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

likelihood that the hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury in question will be of 

a reasonably serious nature. 

6 FMSHRC 1, 3-4 (Jan. 1984). 

The third element of the Mathies test presents the most difficulty when determining 

whether a violation is S&S. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), 

the Commission provided additional guidance: [T]he third element of the Mathies formula 

“requires that the Secretary establish a reasonable likelihood that the hazard contributed to will 

result in an event in which there is an injury.” (citing U.S. Steel Mining Co., Inc., 6 FMSHRC 

1834, 1836 (August 1984)). The Secretary, however, “need not prove a reasonable likelihood 

that the violation itself will cause injury.” Cumberland Coal Resources, 33 FMSHRC 2357, 2365 

(Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1281 

(Oct. 2010). Further, the Commission has found 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); and Blue Bayou Sand & Gravel, Inc., 18 

FMSHRC 853, 857 (June 1996)). This evaluation is also made in consideration of the length of 

time that the violative condition existed prior to the citation and the time it would have existed if 

normal mining operations had continued. Elk Run Coal Co., 27 FMSHRC at 905; U.S. Steel 

Mining Co., Inc., 6 FMSHRC at 1574. 

As stated above, I have already determined that there was a violation of a mandatory 

safety standard. Additionally, I determined there is a high likelihood that the injury in question 

will be of a reasonably serious nature, i.e. broken neck or broken back resulting in a fatality. A 

measure of danger to safety, a discrete safety hazard, was contributed to by the lack of harness or 

safety equipment, and thus could fail to keep the truck driver from falling from the truck bed, 

which could result in serious injuries to a miner. What is left to be determined is whether there 

was a reasonable likelihood that the hazard contributed to will result in an injury. 

Inspector Ford had just finished inspecting the mine. He was doing paper work in his 

vehicle when he looked up and noticed a truck driver on the back of his bed about two hundred 

to three hundred feet from where he was sitting. (Tr. 24:24 – 25:6) That is what led Inspector 

Ford to write the imminent danger order. (Tr. 25:20-22) Inspector Ford told Mr. Huffman that 

the reason he wrote the imminent danger order was because a man was inside the back of the bed 

without any fall protection and he could fall and possibly be killed. (Tr. 28:3-6) 

Inspector Ford testified that he marked the citation as highly likely because he felt that if 

the man had fallen from the top of the truck he could have broken his neck or his back, and that 

36 FMSHRC Page 2501
would have resulted in paralysis or death. (Tr. 36:14-19; 37:3-6) Inspector Ford also testified that 

he felt that falling was very likely to happen from where the truck driver was standing in the 

back of the bed. (Tr. 36:24-25) It is also apparent form the photo exhibit that the truck driver was 

standing towards the back of the truck bed. Ex. S-4. Inspector Ford testified that he designated 

one person affected, and that person was the truck driver. (Tr. 37:7-8) Accordingly, I find that 

the Secretary did meet his burden to prove S&S. 

E. Penalty

 The principles governing the authority of Commission administrative law judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine Act delegates to the Commission and its judges the “authority to assess all civil 

penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing 

penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the 

Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess 

said penalty. 29 C.F.R. § 2700.28. 

Under Section 110(i) of the Mine Act, the Commission is to consider the following when 

assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness 

of such penalty to the size of the business of the operator charged; (3) whether the operator was 

negligent; (4) the effect on the operator's ability to continue in business; (5) the gravity of the 

violation; and (6) the demonstrated good faith in abatement of the violative condition. 30 U.S.C 

§ 820(i). Thus, the Commission alone is responsible for assessing final penalties. See Sellersburg 

Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[N]either the ALJ nor the 

Commission is bound by the Secretary's proposed penalties ... we find no basis upon which to 

conclude that [MSHA's Part 100 penalty regulations] also govern the Commission.”); See 

American Coal Co., 35 FMSHRC 1774, 1819 (July 2013)(ALJ). 

The Commission has repeatedly held that substantial deviations from the Secretary's 

proposed assessments must be adequately explained using the section 110(i) criteria. E.g., 293

Sellersburg Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May 

2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000) (citations omitted). A judge need 

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

contributed to his or her penalty assessments. Cantera Green, 22 FMSHRC at 622. 

The Secretary assessed the penalty for this citation as $7,176.00. Youngquist operated the 

mine for approximately 80,543 hours in 2011, which indicates that the mine is medium sized. 

(Tr. 6:6-22; Ex. S-6) I have already determined above that Youngquist’s negligence was 

moderate. As per the joint stipulations, Youngquist’s business will not be significantly affected 

by the assessed penalty of $7,176.00. (Tr. 6:6-22) As to the gravity of the violation, I found the 

violation to be S&S. The Secretary did not apply to ten percent penalty reduction for good faith 

abatement because it was issued in conjunction with an imminent danger order, Order 8642417. 

Therefore, no abatement time was set. However, given the circumstances that the truck driver 

was not apprehended and Youngquist could not abate the violation, I will give Youngquist the 

ten percent penalty reduction. Therefore, I assess the penalty amount against Youngquist to be 

$6,458.40. 

36 FMSHRC Page 2502
WHEREFORE, it is ORDERED that Youngquist pay a penalty of $6,458.40 within thirty (30) 

days of the filing of this decision. 

/s/ L. Zane Gill

L. Zane Gill 

Administrative Law Judge 

Distribution: 

Emily O. Roberts, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7th Avenue 

North, Suite 240, Nashville, TN 37219 

Jake Huffman, Youngquist Brothers Rock, Inc., 15401 Alico Road, Fort Myers, FL 33913 

36 FMSHRC Page 2503
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 

September 25, 2014 

DECISION

Appearances: Laura Ilardi Pearson, Esq., Office of the Solicitor, U.S. Department of 

Labor, Denver, Colorado, for Petitioner; 

Arthur M. Wolfson, Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for 

Respondent. 

Before: Judge Manning 

These cases are before me upon petitions for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), 

against Peabody Midwest Mining, 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 “Mine Act”). The parties 

introduced testimony and documentary evidence at a hearing held in Henderson, Kentucky, and 

filed post-hearing briefs. Four section 104(d)(2) 1 orders of withdrawal were adjudicated at the 

hearing. The orders were issued at the Francisco Underground Pit in Gibson County, Indiana. 

1

 Subsequent to the hearing, the parties submitted Additional Stipulations with respect to 

the section 104(d) sequence for each order, as discussed below. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

PEABODY MIDWEST MINING, LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 2011-0277 

A.C. No. 12-02295-242579 

Docket No. LAKE 2011-1030 

A.C. No. 12-02295-265364 

Docket No. LAKE 2012-0543 

A.C. No. 12-02295-284950-01 

Docket No. LAKE 2012-0909 

A.C. No. 12-02295-301060 

Francisco Mine – Underground Pit 

36 FMSHRC Page 2504
I. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

A. Order No. 8428824; LAKE 2011-277

On July 20, 2010, MSHA Inspector Philip Douglas Herndon issued Order No. 8428824 

under section 104(d)(2)2

 of the Mine Act, alleging a violation of section 75.202(a) of the 

Secretary’s safety standards. (Ex. G-5). The order states that loose rocks hung about 9.5 feet 

above the mine floor in the face area of the No. 7 entry on MMU-022. The order alleges that one 

rock was 3 feet by 2 feet and was up to 7 inches thick. The other rock was 2 feet by 1.5 feet and 

was up to 6 inches thick. The order also alleges that miners traveled directly below the hanging 

rocks. 

Inspector Herndon 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 significant and substantial (“S&S”), the operator’s negligence 

was high, and that one person would be affected. Section 75.202(a) provides 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.” 30 

C.F.R. § 75.202(a). The Secretary proposed a penalty of $17,800.00 for this order under his 

special assessment regulation. 30 C.F.R. § 100.5. 

For the reasons set forth below, I modify Order No. 8428824 to a 104(a) citation with 

moderate negligence. 

Discussion and Analysis

I find that the conditions cited in Order No. 8428824 constitute a violation of section 

75.202(a). The Secretary's roof-control standard 30 C.F.R. § 75.202(a) is broadly worded. 

Consequently, the Commission held that “the 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 purposes of the standard, would have 

provided in order to meet the protection intended by the standard.” Harlan Cumberland Coal Co 

Company, 20 FMSHRC 1275, 1277 (Dec. 1998) (citing Helen Mining Company, 10 FMSHRC 

1672, 1674 (Dec. 1988)). The requirements of the safety standard, as applied to the roof, can be 

broken down into three parts: (1) the cited area must be an area where persons work or travel; (2) 

the area must be supported or otherwise controlled, and (3) such support must be adequate to 

protect persons from falls of roof. The cited roof conditions were inby the last open crosscut in a 

busy area where workers traveled. (Tr. 17). I credit Terry Morson, a safety technician of 

Respondent, that pie pans and more bolts than the roof plan required helped to support the roof. 

(Tr. 41-42). I credit, however, Inspector Herndon’s testimony that despite Respondent’s efforts, 

the cited roof control was not adequate to protect miners from roof falls. Inspector Herndon 

testified that the rocks he cited were “barely hanging” and shed particles onto the floor. (Tr. 20). 

Respondent argues that the roof was controlled beyond the requirements of its roof control plan 

2

 The parties stipulate that this order was issued in the proper sequence under section 

104(d). Additional Stipulations ¶ 1. 

36 FMSHRC Page 2505
and merely showed signs of changing geology. I credit Inspector Herndon’s testimony, however, 

that the rocks he viewed hanging from the roof required further support. A reasonably prudent 

person familiar with the mining industry and this standard would provide more roof support to 

address the hazard viewed by the inspector. Respondent violated section 75.202(a). 

I find that Order No. 8428824 was S&S because the violation contributed to a hazard that 

was reasonably likely to cause a serious injury.3

 The cited condition violated section 75.202(a) 

and contributed to the hazard of a rock fall permanently disabling a miner. Although pie pans 

helped hold the cited rocks in place upon the roof and Respondent argues that as a result the 

rocks would not fall, I credit Inspector Herndon’s testimony that the loose rocks were only held 

by the corner of the pan. (Tr. 41, 26). Clint Underhill, the shift mine manager, testified that the 

roof conditions at the mine changed daily due to geology and the humidity in July, which could 

account for this dangerous condition that occurred despite Respondent’s additional roof control. 

(Tr. 57). Further changes in the geological conditions in the area could also lead to the cited 

stones falling. Although Respondent argues that the area beneath the rocks was not traveled the 

day of or before the inspection, assuming continued normal mining operations I find that miners 

would travel beneath the cited rocks. Inspector Herndon testified that rock dust in the cracks of 

the rock suggested that the rocks existed in the cited condition for days, which means the 

condition was unlikely to be corrected. The precarious position of the rocks made them likely to 

fall and the area underneath was often busy, making a rock fall likely to strike a miner. (Tr. 17). 

Due to the traffic in the cited area and the precarious position of the cited rocks, I find that Order 

No. 8428824 was S&S and a serious violation. 

I find that Respondent’s moderate negligence, but not its unwarrantable failure4 to 

comply with the safety standard, caused the violation. Respondent knew or should have known 

3

 An S&S violation is a violation “of such nature as could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d) 

(2006). In order to establish the S&S nature of a violation, the Secretary must prove: “(1) the 

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

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

hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury will 

be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord 

Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F. 2d 

99, 103 (5th Cir. 1988) (approving Mathies criteria). The Commission has held that “[t]he test 

under the third element is whether there is a reasonable likelihood that the hazard contributed to 

by the violation...will cause injury.” Musser Eng’g, Inc. and PBS Coals, Inc., 32 FMSHRC 

1257, 1281 (Oct. 2010). 

4

 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 

 (continued...) 

36 FMSHRC Page 2506
of the condition, but mitigated its negligence by undertaking efforts to control the roof. I find that 

the condition of the roof was not obvious because the positioning of the rocks made them appear 

trapped by pie pans. The pie pans highlight Respondent’s efforts to abate the hazardous roof 

condition by providing additional support. The pie pans were not required by the roof plan and 

Respondent also used more bolts than the plan required. Although aggravating factors exist 

including that the condition existed for several days and the condition posed a high degree of 

danger, I find that Respondent’s efforts to abate the citation and comply with the standard make 

an unwarrantable failure designation inappropriate. Respondent did not ignore the need to 

properly support its mine roof, it merely misjudged what was necessary to do so. These factors 

combine to warrant a moderate negligence designation because Respondent should have known 

of the violative condition. 

I MODIFY Order No. 8428824 to a 104(a) citation with moderate negligence. A penalty 

of $15,000.00 is appropriate for this violation. 

B. Citation No. 8433566, LAKE 2012-543; and Citation No. 8433568, LAKE 2011-1030 

On June 27, 2011, MSHA Inspector Shawn D. Batty issued Order No. 8433566 under 

section 104(d)(2)5 of the Mine Act, alleging a violation of section 75.220(a)(1) of the Secretary’s 

safety standards. (Ex. G-5). The citation alleges that Peabody Midwest did not follow the 

provision in its approved roof control plan that requires entries in the mains to be no wider than 

18 feet. The citation states that Inspector Batty measured the width of entries in Unit No. 1 and 

discovered 35 places where the width of an entry was greater than the permissible 18 foot 

maximum. 

Inspector Batty determined that an injury was reasonably likely to occur and that such an 

injury could reasonably be expected to be fatal. Further, he determined that the violation was 

S&S, the operator’s negligence was high, and that 14 people would be affected. Section 

75.220(a)(1) requires mine operators to “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.” 30 C.F.R. § 75.220(a). The Secretary proposed a penalty of $40,300.00 

for this citation under his special assessment regulation. 30 C.F.R. § 100.5. 

4 (...continued) 

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). 

5

 Based upon these proceedings and the stipulations of the parties in Additional 

Stipulations, this violation should be a 104(d)(1) citation. Additional Stipulations ¶ 3. 

36 FMSHRC Page 2507
Inspector Batty also issued Citation No. 8433568 on June 27, 2011 under section 

104(d)(2)6

 of the Mine Act, alleging a violation of section 75.362(a)(1) of the Secretary’s safety 

standards. (Ex. G-7). The citation alleges that Peabody Midwest did not conduct adequate onshift examinations in Unit No. 1. The inspector determined that the on-shift examinations were 

inadequate based upon the conditions he cited in Citation No. 8433566. The citation states that 

the mine examiners’ books did not contain the cited conditions. 

Inspector Batty determined that an injury was reasonably likely to occur and that such an 

injury could reasonably be expected to be fatal. Further, he determined that the violation was 

S&S, the operator’s negligence was high, and that 14 people would be affected. Section 

75.362(a)(1) requires that at “least once during each shift, or more often if necessary for safety, a 

certified person designated by the operator shall conduct an on-shift examination of each section 

where anyone is assigned to work during the shift . . . .” 30 C.F.R. § 75.362(a)(1). The safety 

standard further provides that the certified person “shall check for hazardous conditions and 

violations of mandatory health or safety standards referenced in paragraph (a)(3) of this section. . 

. .” Id. Paragraph (a)(3) references section 75.220(a)(1). The Secretary proposed a penalty of 

$38,503.00 for this citation. 

For the reasons set forth below, I modify Citation Nos. 8433566 and 8433568 to affect 

less than 14 people. 

Discussion and Analysis

For Citation Nos. 8433566 and 8433568, Respondent accepts the violation, and the S&S, 

negligence, and unwarrantable failure designations. Respondent contests the fatal designation 

and the number of persons affected, seeking to reduce the penalty amount. 

I find that fewer than 14 persons would be affected by the violation cited in Citation No. 

8433566. An expansive, well-traveled area of entries of the submains were wider than 18 feet, 

potentially affecting multiple miners. I find, however, that it was unlikely that the cited condition 

would contribute to the injury of 14 miners. Although the inspector testified that 14 miners 

worked in the area, I find it unlikely that 14 miners would be in the same space at the time of a 

rock fall. I credit the testimony of Respondent’s witnesses, Chad Barras, Respondent’s safety 

director, and Jack Wells, who was a member of Respondent’s safety department at the time of 

the violation, that 14 miners were unlikely to be in one spot due to their varied work duties. 

Wells testified that it “would be kind of a miracle” to see 14 miners together. (Tr. 108). Barras 

also testified that the mine’s procedure to investigate roof falls would make it unlikely that this 

citation would contribute to a succession of numerous roof falls and injury causing events that 

would injure 14 people. (Tr. 118). I find that it was not reasonably likely that the violation at 

issue in Citation No. 8433566 would have affected the entire 14-person crew. The maximum 

number of miners affected would have been about five. 

I find that the violation cited in Citation No. 8433566 was reasonably likely to contribute 

to a fatal injury. Respondent does not dispute that Citation No. 8433566 was reasonably likely to 

6

 Based upon these proceedings and the stipulations of the parties in Additional 

Stipulations, this violation should be a 104(d)(1) citation. Additional Stipulations ¶ 3. 

36 FMSHRC Page 2508
contribute to an injury, 7 but does contest that the likely injury in such an event would not be 

fatal. Respondent argues that an injury causing event was unlikely to occur because the cited 

areas were newly mined submains instead of intersections, only marginally exceeded the 

standard in the roof control plan, and did not show any evidence of unsafe conditions. It is well 

recognized that roof falls pose one of the most serious hazards to miners in the coal mining 

industry. United Mine Workers of America v. Dole, 870 F.2d 662, 669 (D.C. Cir. 1989). The 

Commission has noted the inherently dangerous nature of mine roofs and attributed the leading 

cause of death in underground mines to roof falls. Consolidation Coal Co., 6 FMSHRC 34, 37 

(Jan. 1984); Eastover Mining Co., 4 FMSHRC 1207, 1211, n.8 (July 1982); Halfway 

Incorporated, 8 FMSHRC 8, 13 (Jan. 1986). I find that the cited condition was extensive and 

unlikely to be corrected under continued normal mining operations. Respondent’s arguments that 

the ribs were not cracking or falling and the submains were new suggest that danger was not 

imminent, but do not change the fact that a roof fall is likely to fatally injure a miner. Roof falls 

are one of the greatest dangers in mining and I credit the inspector’s conclusion that the likely 

injury for Citation No. 8433566 would be fatal. 

My findings concerning the fatal designation and affected people for Citation No. 

8433566 apply to Citation No. 8433568, but Citation No. 8433568 could potentially affect more 

people. The dangers of the underlying conditions cited in Citation No. 8433566 affect the gravity 

of Citation No. 8433568, but a variety of other hazards also contribute to the gravity because 

inadequate examinations can allow additional hazards to exist. The distance covered by the 

violative conditions cited in Citation No. 8433568 shows that the inadequate examinations were 

not contained to a small area. Performing adequate examinations is one of the most important 

safety precautions for a mine; proper examinations lead to the identification and correction of 

hazards. Improper examinations allow hazards to exist and multiply. For these reasons and the 

ones discussed above concerning Citation No. 8433566, Citation No. 8433568 was reasonably 

likely to contribute to a fatal injury. The violation was serious and could affect more than five 

miners. 

Although I reduce the number of miners affected by the conditions identified in Citation Nos. 

8433566 and 8433568, I highlight the seriousness of the violations, which posed a hazard to 

multiple miners. Both of these violations could lead to roof falls that were likely to be fatal to 

miners. 

7

 If Respondent had not accepted the S&S designation and argued that an accident was 

not reasonably likely to contribute to a serious injury, I would have determined that Citation No. 

8433566 contributed to the hazard of a roof fall that was reasonably likely to result in crushing 

injuries. The roof control plan mandated 18 foot submains at entries. Allowing greater widths is 

a clear violation of the plan that can contribute to a roof fall resulting in crushing injuries. The 

sheer volume of violative areas, 1142 linear feet in 35 different locations, makes an injury more 

likely. (Tr. 83). The cited areas of the mine were active and frequented by miners. (Tr. 84). The 

cited condition was extensive, dangerous, and reasonably likely to contribute to a fall of rock and 

resulting crushing injuries. 

36 FMSHRC Page 2509
I MODIFY Citation No. 8433566 to be likely to affect no more than five miners and 

Citation No. 8433568 to be likely to affect more than five miners. A penalty of $25,000.00 is 

appropriate for Citation No. 8433566 and $28,000.00 is appropriate for Citation No. 8433568. 

C. Citation No. 8434301; LAKE 2011-909

On May 26, 2011, MSHA Inspector Stephen J. Wilson issued Order No. 8434301 under 

section 104(d)(2)8

 of the Mine Act, alleging a violation of section 75.1103-5(h) of the 

Secretary’s safety standards. (Ex. G-9). The citation states that the carbon monoxide (“CO”) 

sensor at crosscut 12 providing fire protection for the 2nd Southwest Main A belt line became 

inoperative at 02:57 am on May 26, 2011 during the midnight shift. The sensor alerted the person 

upon the surface who is responsible for tracking the system. The citation alleges that this person 

alerted the maintenance foreman of the condition but the foreman took no action to correct the 

condition and did not assign anyone to continuously monitor for CO at the inoperative sensor. 

The citation further alleges that two production units were in operation and belts continued to 

operate. 

Inspector Wilson determined that an injury was reasonably likely to occur and that such 

an injury could reasonably be expected to be fatal. Further, he determined that the violation was 

S&S, the operator’s negligence was high, and that 64 people would be affected. Section 75.1103-

5(h) provides that “[i]f any fire detection component becomes inoperative, immediate action 

must be taken to repair the component.” 30 C.F.R. § 75.1103-5(h). The safety standard further 

provides that “[w]hile repairs are being made, operation of the belt may continue” if, as 

applicable here, a “trained person . . . continuously” monitors for CO “at the inoperative sensor.” 

Id. The Secretary proposed a penalty of $38,500.00 for this citation. 

Discussion and Analysis

I find that Respondent’s failure to immediately calibrate the cited CO sensor violates 

section 75.1103-5(h). I find that the cited sensor, which required calibration, was inoperative. 

Herbert Andy Ryder, Respondent’s maintenance foreman, testified that the sensor still monitored 

CO, but underestimated the amount of CO in the area by 5 ppm. (Tr. 159). The screen that 

alerted Respondent that the sensor needed calibrated, however, did not contain specific data 

about the performance of the sensor. A test that exposes the sensor to a known quantity of CO 

had to be performed to garner this information. (Tr. 159). The sensor’s CO monitoring ability 

could have estimated CO levels well below a calibrated sensor, which would impair the sensor 

enough to make it effectively inoperative. The standard requires immediate repair because an 

inoperative sensor cannot detect increased CO levels to provide warning of a fire, which can be 

true of a poorly calibrated CO sensor. Without performing a test to confirm the specific condition 

of the CO sensor, Respondent neglected to fix the sensor immediately, risking that an ineffective 

and inoperative sensor would fail to provide warning of a fire. Inspector Stephan J. Wilson 

8

 The parties stipulate that this violation should be a 104(d)(1) citation. Additional 

Stipulations ¶ 2. 

36 FMSHRC Page 2510
testified that Respondent did not recalibrate the sensor for almost six hours, which does not 

qualify as immediately, which violates the standard. 

 I find that Citation No. 8434301 was not S&S because it did not contribute to a hazard 

that was reasonably likely to cause an injury. Although it required calibration to function at its 

full capacity in violation of the standard, the CO monitor continued to detect CO. 9 I credit 

Ryder’s testimony that the cited sensor continued to alert miners to a drop in CO before the level 

of that CO became dangerous. (Tr. 157). If a fire occurred, the CO output would be great enough 

to trigger the cited sensor almost as quickly as a correctly calibrated sensor. I also credit Ryder’s 

testimony that he calibrated the sensor as part of his normal duties and not due to the violation or 

a threat of a violation; he did not even know that Inspector Wilson was in the area when he 

traveled there with the intention to fix the sensor. (Tr. 158). Under continued normal mining 

operations, therefore, the condition would not have existed any longer than it did and would not 

have further deteriorated because normal mining operations rather than the violation led Ryder to 

correct the condition. This violation was unlikely to contribute to the hazard that a mine fire 

would propagate faster due to inadequate warning, resulting in burns or fatalities and therefore is 

not S&S. The gravity was serious, however. 

 I find that fewer than 64 miners were affected by the violation. The air passing over the 

cited sensor traveled outby, which means that it would not bring CO to the working faces. The 

slight delay responding to a fire caused by this improperly calibrated sensor would most likely 

only affect those miners who responded to fight the fire. I find, therefore that Citation No. 

8434301 affected only a few miners. 

 The violation was the result of Respondent’s high negligence. Charles S. Lyons, 

Respondent’s third shift maintenance supervisor, knew or should have known of the violation yet 

failed to calibrate the sensor immediately. Lyons admittedly saw that the sensor required 

calibration. (Tr. 140-41). Instead of traveling directly to the sensor, Lyons performed various 

other duties and repairs and never reached the sensor before the end of his shift. (Tr. 143-47). 

Respondent did not address this violation for six hours. Lyons’ negligence is attributable to the 

operator. The Secretary did not present evidence to show that Respondent was on notice that 

greater efforts were necessary to comply with section 75.1103-5(h). As discussed above, this 

violation presented little danger to miners and was abated as the citation was issued. Lyons knew 

of this condition and should have addressed it sooner, but was distracted by numerous 

maintenance projects, some of which were also safety concerns. It is important to note that 

Respondent believed that the sensor was functional and its condition did not contribute to a 

serious threat to safety. (Tr. 142-47). I find that Respondent’s negligence was high but it did not 

rise to the level of aggregated conduct. Consequently, taking into consideration all of the relevant 

 9

 The Secretary relies upon Black Beauty Coal Co. to argue that this violation should be 

S&S, but that decision addresses the complete absence of an audible warning device in a CO 

censor system, which is different and more dangerous than the facts presented here. 33 FMSHRC 

1504, 1525 (2011) (ALJ). Here, every other sensor continued to work and provide warning, 

which would not cause the same danger as a system that failed to provide an audible warning. 

That decision, furthermore, is not precedent. 

 

36 FMSHRC Page 2511
facts, I find that the violation was not the result of Respondent’s unwarrantable failure to comply 

with the safety standard. 

I MODIFY Citation No. 8434301 to a non-S&S 104(a) citation with high negligence. A 

penalty of $8,000.00 is appropriate for this violation. 

II. SETTLED CITATIONS AND ORDERS

Docket No. LAKE 2011-277 was originally assigned to Judge Janet Harner. By order 

dated March 9, 2012, she approved the settlement of Citation Nos. 8426473 and 8426476 and 

Order No. 8430017. She ordered Peabody Midwest to pay a penalty of $8,500.00 within 30 days 

of the date of her order. 

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 reviewed the Assessed Violation History Report, which is not 

disputed. (Ex. G-1). Peabody Midwest paid penalties for 688 violations in the 15 months prior to 

June 26, 2011 and 82 of these violations were S&S. Id. At all pertinent times, Peabody Midwest 

was a large mine operator and the controlling company, Peabody Energy Corporation, was also a 

large operator. The violations were abated in good faith. The penalties assessed in this decision 

will not have an adverse effect on Peabody’s ability to continue in business. The gravity and 

negligence findings are set forth above. I have assessed the penalty for each citation de novo

taking into consideration the six penalty criteria. Peabody Midwest argues that the penalty for 

each citation should be substantially reduced from that proposed by the Secretary. I have 

assessed relatively high penalties based primarily on the size of the mine and the controlling 

company and on my gravity and negligence findings. 

IV. ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

 Citation/Order No. 30 C.F.R. § Penalty

LAKE 2011-277 

 8428824 75.202(a) $15,000.00 

LAKE 2011-1030 

 8433568 75.362(a)(1) $28,000.00 

LAKE 2012-543 

 8433566 75.220(a)(1) $25,000.00 

LAKE 2012-909 

 8434301 75.1103-5(h) $8,000.00 

36 FMSHRC Page 2512

TOTAL PENALTY $76,000.00 
For the reasons set forth above, the citations and order are MODIFIED as set forth 

above. Peabody Midwest Mining, LLC is ORDERED TO PAY the Secretary of Labor the sum 

of $76,000.00 within 40 days of the date of this decision.10 

/s/ Richard W. Manning

Richard W. Manning 

Administrative Law Judge 

Distribution: 

Laura Ilardi Pearson, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer 

Boulevard, Suite 216, Denver, CO 80204 (Certified Mail) 

Arthur M. Wolfson, Esq., Jackson Kelly, 3 Gateway Center, Suite 1500, 401 Liberty Ave., 

Pittsburgh, PA 15222 (Certified Mail) 

RWM 

10 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 2513
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, D.C. 20004-1710 

 

September 26, 2014

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

RECON REFRACTORY & 

CONSTRUCTION, 

 Respondent.

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2010-450-M 

A.C. No. 02-03243-203823 (NWB) 

Mine: Drake Quarry 

AMENDED DECISION AND ORDER

Appearances: Douglas L. Sanders, Esq., U.S. Department of Labor, Office of the 

 Solicitor, Denver, Colorado, for Petitioner; 

 Eugene F. McMenamin, Esq., Atkinson, Andelson, Loya, Ruud & Romo, 

 Cerritos, California, for Respondent. 

Before: Judge Paez 

 The decision and order issued August 28, 2104, is hereby amended pursuant to 

Commission Rule 69(c), 29 C.F.R. § 2700.69(c), to read as set forth below.1 

 1

 On September 24, 2014, the Secretary filed a Motion to Approve Penalty and Order 

Payment for Citation No. 6453944. In his motion, the Secretary explained that RECON had 

withdrawn its contest to the citation in its initial Answer to the Petition and agreed to pay the 

proposed penalty of $263.00. (Sec’y Mot. at 1.) Although the withdrawal of contest for Citation 

No. 6453944 was noted on the record at hearing (Tr. 6:25–7:2), through clerical error, the 

citation was not addressed or dismissed in the August 28, 2014, Decision and Order. 

Accordingly, I approve this penalty under 30 U.S.C. § 110(i) and amend the August 28 decision 

sua sponte to rectify this clerical omission. 

 This case is before me upon the Petition for the Assessment of a Civil Penalty filed by 

the Secretary of Labor (“Secretary”) pursuant to section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). In dispute are five section 104(a) citations 

issued by the Mine Safety and Health Administration (“MSHA”) to Recon Refractory & 

Construction (“RECON” or “Respondent”) as a subcontractor at Drake Cement Company’s 

Drake Quarry mine. Respondent withdrew its contest to a sixth section 104(a) citation issued by 

MSHA. (Resp’t Answer at 2.) To prevail, the Secretary must prove the cited violations “by a 

preponderance of the credible evidence.” In re: Contests of Respirable Dust Sample Alteration 

36 FMSHRC Page 2514
Citations, 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 

11 FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom. SOL v. Keystone Coal Mining Corp., 151 

F.3d 1096, 1106-07 (D.C. Cir. 1998). This standard requires the Secretary to demonstrate that 

“the existence of a fact is more probable than its non-existence.” RAG Cumberland Res. Corp., 

22 FMSHRC 1066, 1070 (Sept. 2000) (citations omitted). 

 

I. STATEMENT OF THE CASE

 Four of these alleged violations involve electrical equipment at Drake Quarry, and the 

fifth alleged violation involves workplace examination procedures at the site. First, Citation 

No. 6453940 charges RECON with a violation of 30 C.F.R. § 56.12025 for the failure to install a 

grounding rod on a power generator. Second, Citation No. 6453941 charges RECON with a 

violation of 30 C.F.R. § 56.12028 because continuity and resistance testing had not been 

performed on the aforementioned power generator. Third, Citation No. 6453945 charges 

RECON with a violation of 30 C.F.R. § 56.12004 for leaving 13 damaged electrical extension 

cords unprotected. Fourth, Citation No. 6453946 alleges a violation of 30 C.F.R. § 56.12025 

because the ground prongs on five electrical extension cords and one grounding device were 

broken or missing. Finally, Citation No. 6454808 charges RECON with a violation of 30 C.F.R. 

§ 56.18002(a) for a failure to perform and document required workplace examinations. The 

Secretary designated each violation as significant and substantial (“S&S”).2

 The Secretary 

proposed a total civil penalty of $2,535.00 for these five citations. 

 A hearing was held in Riverside, California. The Secretary presented testimony solely 

from MSHA Inspector Enrique Vidal. (Tr. 16:17–101:9; Sec’y Preh’g Statement at 4.) RECON 

called three witnesses: Joseph Longstreet, Vice President of RECON; Benjamin Allen, 

RECON’s Cost Controls Manager; and Gregory Howearth, RECON’s Corporate Health and 

Safety and Environmental Manager. (Tr. 103:8–108:11; 110:17–117:6; 118:4–133:15.) 

II. ISSUES

 The Secretary argues that the conditions were properly cited as violations and that the 

allegations underlying the citations are valid. (Sec’y Post Trial Br. at 15.) RECON denies each 

violation, arguing that the Secretary has failed to meet his burden of proof for each citation. 

(Resp’t Post Trial Br. at 5.) 

 2

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

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

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

 Accordingly, the following issues are before me: (1) whether, for each citation, the 

Secretary proved that a violation of a mandatory safety or health standard occurred at Drake 

Quarry; (2) whether the Secretary proved that each alleged violation was S&S; (3) whether the 

Secretary proved that RECON acted with moderate negligence regarding each violation; and 

(4) whether the Secretary’s proposed penalties are appropriate. 

36 FMSHRC Page 2515
 For the reasons that follow, I AFFIRM as written Citation Nos. 6453940, 6453941, 

6453945, and 6453946, and I VACATE the fifth, Citation No. 6454808. 

III. FINDINGS OF FACT 

A. Operations at Drake Quarry 

Prior to hearing, the Secretary filed a motion for partial summary decision to establish 

that RECON was subject to MSHA jurisdiction. (Sec’y Mot. for Partial Summ. Dec.) I held that 

the Drake Quarry site was a “mine” under the Mine Act, that the quarry was subject to MSHA 

jurisdiction, and that the MSHA inspectors had the authority to issue RECON the citations at 

issue in this case. Recon Refractory & Constr., Inc., 34 FMSHRC 1722, 1731 (2012) (ALJ). 

Accordingly, I granted the Secretary’s motion for partial summary decision solely on the issue of 

jurisdiction. Id. My findings of fact from that order are reproduced below:

On April 6, 2009, MSHA assigned a mine identification number to 

Drake Quarry, a surface metal/nonmetal mine owned by Drake 

Cement Company (“Drake”) and located near Paulden, Arizona. 

On October 6 and 7, 2009, MSHA Inspector Enrique Vidal 

conducted a routine health and safety inspection of the Drake 

Quarry site. On October 8, 2009, MSHA Inspector Kyle Griffith 

continued the inspection of the Drake Quarry site.

RECON was hired as a subcontractor by CCC Group to build a 

facility on the Drake Quarry construction site. During the October 

2009 inspections, the Secretary's inspectors issued RECON seven 

citations, five of which are before me. 

 

Recon Refractory & Const., Inc., 34 FMSHRC 1722, 1724 (2012) (ALJ). 

B. October 6–7, 2009 Inspection

 

 Upon arriving at Drake Quarry on October 6, Inspector Vidal noticed a power generator 

(“Gen-set”). (Tr. 20:18–20.) Vidal discovered that the Gen-set did not have a grounding rod. (Tr. 

20:20–21.) A grounding rod is required to prevent the metal generator from becoming electrified. 

(Tr. 23:24–24:4.) Inspector Vidal stated that miners regularly came into direct contact with the 

generator, which placed them in danger of fatal electrocution. (Tr. 24:5–25:2.) Based on his 

observations, Vidal issued Citation No. 6453940 alleging a violation of 30 C.F.R. § 56.12025. 

(Ex. G–2.) He determined that this violation was reasonably likely to result in a fatal injury to 

one miner due to the operator’s moderate negligence. Id. MSHA proposed a penalty of $873.00 

for this violation. 

 Moreover, because the grounding rod was not installed, testing on the rod could not be 

performed. (Tr. 34:21–22.) Accordingly, Vidal also issued Citation No. 6453941 alleging a 

violation of 30 C.F.R. § 56.12028. (Ex. G–5.) He determined that this violation was reasonably 

36 FMSHRC Page 2516
likely to result in a fatal injury to one miner due to the operator’s moderate negligence. Id.

MSHA likewise proposed a penalty of $873.00 for this violation. 

Thereafter, during the inspection of the lay-down area3

 in Drake Quarry, Vidal saw a 

gang box and asked one of Drake Quarry’s employees about its contents. (Tr. 42:16–17.) The 

unidentified employee told Vidal that the gang box contained extension cords available for use 

by the miners. (Tr. 42:15–24.) Vidal further observed that out of 13 electrical extension cords, 11 

had compromised outer protective jackets along with some damage to the inner conductors. (Tr. 

46:7–11;49:4–17.) In addition, two of the electrical extension cords had completely exposed bare 

wiring that could expose miners to 110 volts of electricity. (Tr. 46:7–11;49:4–17.) Vidal testified 

that the unidentified employee told him the gang box containing the wires was unlocked and 

accessible by any miner. (Tr. 43:22–44:9.) As a result of his observations, Vidal issued Citation 

No. 6453945 alleging a violation of 30 C.F.R. § 56.12004. (Ex. G–8.) He determined that this 

violation was reasonably likely to result in lost workdays or restricted duty to one miner due to 

the operator’s moderate negligence. Id. MSHA proposed a penalty of $263.00 for this violation. 

While inspecting the gang box, Vidal also noticed that the ground prongs on five of the 

extension cords were either removed, missing, or broken. (Tr. 51:21–52:8.) Further, an on-site 

ground fault current interceptor (“GFCI”)—which is a device intended to prevent 

electrocution— was damaged. (Tr. 52:16–53:8.) Based on his observations, Vidal issued Citation 

No. 6453946 alleging a violation of 30 C.F.R. § 56.12025. (Ex. G–11.) He determined that this 

violation was reasonably likely to result in lost workdays or restricted duty to one miner due to 

the operator’s moderate negligence. Id. MSHA proposed a penalty of $263.00 for this violation. 

C. October 8, 2009 Inspection

On October 8, 2009, Inspector Kyle Griffith issued Citation No. 6454808 at Drake 

Quarry alleging a violation of 30 C.F.R. § 56.18002(a). (Ex. G–14.) The citation has boxes 

checked noting that the violation was reasonably likely to result in lost workdays or restricted 

duty to one miner due to the operator’s high negligence. Id. MSHA proposed a penalty of 

$263.00 for this violation. The citation alleges that RECON failed to perform or document such 

workplace examinations. (Ex. G–14.) However, neither Inspector Griffith nor any other 

authorized representative of the Secretary testified regarding the issuance of this citation. 

IV. PRINCIPLES OF LAW

A. Independent Contractors 

The Commission has held that an independent contractor performing services at a mine is 

an operator of the mine within the meaning of section 3(d) of the Mine Act. Ames Construction, 

Inc., 33 FMSHRC 1607 (July 2011), aff’d, 676 F.3d 1109 (D.C. Cir. 2012) (“independent 

3

 The “lay-down area” consists of an office, fabricating area, and shop-area covered by a 

tarp. (Tr. 42:25–43:3.)

36 FMSHRC Page 2517
contractors who exercise supervision and control—in other words, ones also covered by the 

production-operator portion of § 3(d)—are [strictly] liable”). Moreover, the Commission has a 

“longstanding view that the purpose of the [Mine] Act is best effectuated by citing the party with 

immediate control over the working conditions and the workers involved when an unsafe 

condition arising from those work activities is observed.” Old Dominion Power Co., 6 FMSHRC 

1886 (Aug. 1984) (citing Phillips Uranium Corp., 4 FMSHRC 549 (Apr. 1982)). 

B. Significant and Substantial

 A violation is S&S if, “based on the particular facts surrounding that violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

To establish an S&S violation, the Secretary must prove: “(1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazard—that is, a measure of danger to 

safety—contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to 

will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted); 

see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, 

Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving the Mathies criteria). 

 Aside from specifying the elements I must consider in examining an S&S designation, 

the Commission has also provided guidance to Administrative Law Judges in applying the 

Mathies test. The Commission found that “an inspector’s judgment is an important element in an 

S&S determination.” Mathies, 6 FMSHRC at 5 (citing Nat’l Gypsum, 3 FMSHRC at 825–26); 

see also Buck Creek Coal, 52 F.3d at 135–36 (stating that ALJ did not abuse discretion in 

crediting the opinion of an experienced inspector). The Commission has also observed that “the 

reference to ‘hazard’ in the second element is simply a recognition that the violation must be 

more than a mere technical violation—i.e., that the violation present a measure of danger.” U.S. 

Steel Mining Co., 3 FMSHRC 822,827 (Apr. 1981). Moreover, the Commission has indicated 

“[t]he correct inquiry under the third element of Mathies is whether the hazard identified under 

element two is reasonably likely to cause injury.” Black Beauty Coal Co., 34 FMSHRC 1733, 

1742–43 & n.13 (Aug. 2012). Finally, the Commission indicated an evaluation of the reasonable 

likelihood of injury should be made assuming continued mining operations. U.S. Steel Mining 

Co., 7 FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 

1574 (July 1984)). 

C. Regulatory Interpretation 

Interpreting the Secretary’s regulations that implement the Mine Act is a two-step 

process. First, unambiguous regulatory provisions “must be enforced as they are written unless 

the regulator clearly intended the words to have a different meaning or unless such meaning 

would lead to absurd results.” Jim Walter Res., Inc., 28 FMSHRC 578, 587 (Aug. 2006) (citing 

Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987), and Utah Power & Light Co., 

11 FMSHRC 1669, 1681 (Dec. 2010) (citing RAG Shoshone Coal Corp., 26 FMSHRC 75, 80 & 

n.7 (Feb. 2004)). Second, if the meaning of the regulation is ambiguous, the Secretary’s 

36 FMSHRC Page 2518
reasonable interpretation of the regulation is entitled to deference. Mach Mining, LLC, 

34 FMSHRC 1784, 1806 (Aug. 2012). 

V. ADDITIONAL FINDINGS OF FACT — ANALYSIS — CONCLUSIONS OF LAW

A. Electrical Violations 

 1. Citation No. 6453940 – The Grounding Rod

 Section 56.12025 requires operators to ensure that all metal used to enclose or encase 

electrical circuits be grounded or provided with equivalent protection.4 30 C.F.R. § 56.12025. 

Moreover, section 56.12025 is a performance standard; thus, it does not specify or require that 

the operator ground the metal in a specific manner. Contractors Sand & Gravel Supply, Inc., 

18 FMSHRC 384, 387 (Mar. 1996) (ALJ). Accordingly, an operator violates section 56.12025 

when it fails to ground the metal that encloses electrical circuits. See Brown Bros. Sand Co., 

17 FMSHRC 578, 584 (Apr. 1995). 

 4

 Section 56.12105 provides: “All metal enclosing or encasing electrical circuits shall be 

grounded or provided with equivalent protection. This requirement does not apply to 

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

a. Contractor Liability

 Inspector Vidal issued Citation No. 6453940 for RECON’s failure to install a grounding 

rod on the power generator he observed. (Ex. G–2.) RECON does not dispute that a grounding 

rod was absent but instead argues that the Secretary should have issued this citation to the 

general contractor, CCC Group, which brought the power generator to the Drake Quarry but 

failed to install it properly. (Resp’t Preh’g Report at 3.) Joseph Longstreet, RECON’s Vice 

President, testified that, under the contract with CCC Group, RECON was not allowed to 

maintain any equipment provided by CCC Group, including the power generator. (Tr. 

104:15–22.) However, despite this testimony, RECON failed to provide a copy of the specific 

contract provision that spelled out the prohibition it alleges. 

 Nevertheless, Respondent’s argument misses the mark. The Mine Act is a strict liability 

statute that imposes liability without fault for things within one’s control or supervision. 

See Sec’y of Labor v. Nat’l Cement Co. of Cal., 573 F. 3d 788, 795 (D.C. Cir. 2009). It is 

undisputed that the power generator was located on RECON’s work site. (Tr. 76:25–77:6.) 

Therefore, the power generator was under RECON’s control and supervision at the time the 

citation was issued. 

 Although CCC Group installed the power generator, RECON—as a subcontractor hired 

to perform work at the mine—is deemed an operator of the mine within the meaning of section 

3(d) of the Mine Act. Ames Construction, Inc., 33 FMSHRC 1607 (July 2011), aff’d, 676 F.3d 

36 FMSHRC Page 2519
1109 (D.C. Cir. 2012). Consequently, RECON is strictly liable for the cited condition that 

occurred in connection with the power generator. Further, Respondent does not dispute that 

the power generator lacked a grounding rod. Accordingly, I conclude that RECON violated 

30 C.F.R. § 56.12025. 

b. S&S

RECON’s violation of 30 C.F.R. § 56.12025 establishes the first element of the Mathies

test for an S&S violation. The second element of the Mathies test requires that the violation 

contribute to a safety hazard. In this case, Inspector Vidal testified that the power generator’s 

lack of a grounding rod would expose anyone who came into contact with the energized 

generator to approximately 240 volts of electricity. (Tr. 23:24–24:4.) Further, Vidal testified that 

the power generator was located right next to where miners worked, and thus miners could come 

in direct contact with the generator. (Tr. 24:21; 25–2.) Moreover, Vidal indicated that 240-volt 

electrocution would likely be fatal. (Tr. 25:14–17.) I give great weight to Inspector Vidal’s 

testimony based on his 15 years as a MSHA inspector. Therefore, given Vidal’s testimony, I 

determine that the third and fourth Mathies elements are established and, thus, conclude that this 

violation was appropriately designated as S&S. 

c. Negligence

The Secretary’s regulations define negligence as “conduct, either by commission or 

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

against the risk of harm.” 30 C.F.R. § 100.3(d). Moderate negligence is appropriate when “[t]he 

operator knew or should have known of the violative condition or practice, but there are 

mitigating circumstances.” Id. Inspector Vidal stated that looking for a grounding rod is a “very 

basic” practice (Tr. 20:20) and information regarding grounding rods is readily available on the 

Internet. (Tr. 30:1–3.) Thus, RECON knew or should have known that the power generator 

required a grounding rod. Nevertheless, I note that RECON’s status as an independent 

subcontractor in conjunction with its understanding that CCC group, as the general contractor, 

was responsible for the installation of the power generator somewhat mitigates RECON’s 

negligence in this case. Thus, I agree with Inspector Vidal’s determination and conclude that 

Citation No. 6453940 was properly designated as “moderate” negligence. 

Based on the above analysis, I conclude that RECON violated section 56.12025, that the 

violation was S&S, and that the violation occurred as a result of RECON’s moderate negligence. 

2. Citation No. 6453941 – Continuity Testing

Section 56.12028 states the following: “Continuity and resistance of grounding systems 

shall be tested immediately after installation, repair, and modification; and annually thereafter. A 

record of the resistance measured during the most recent tests shall be made available on a 

request by the Secretary or his duly authorized representative.” 30 C.F.R. § 56.12028. 

36 FMSHRC Page 2520
and resistance testing on the same power generator cited in Citation No. 6453940. Respondent 

argues that the absence of a grounding rod forecloses a claim for failure to perform the required 

continuity and resistance testing. (Resp’t Reply to Sec’y Post-Trial Br. at 2.) Essentially, 

Respondent argues that Citation No. 6453941 cannot be sustained if I affirm Citation No. 

6453940. Curiously, Respondent cites no case law for the proposition that its duty to comply 

with section 56.12028 depends on whether it has satisfied its duty to comply with section 

56.12025. Notwithstanding Respondent’s efforts to make compliance with section 56.12025 a 

necessary element of section 56.12028, I note that the Mine Act is a strict liability statute, and it 

requires operators to comply with the Secretary’s safety and health standards. Cf. Rock of Ages 

Corp., 20 FMSHRC 113–14 (Feb. 1998) (stating that the Mine Act imposes strict liability and 

refusing to insert an unwritten element into the text of a regulation). Moreover, the Secretary 

argues that Respondent misinterprets the phrase “immediately after installation” in 30 C.F.R. 

§ 56.12028 by reading it narrowly to mean “immediately after installation of the grounding rod.”

(Sec’y Post-Trial Br. at 8.) Instead, the Secretary claims that “installation” refers to installation 

of the equipment, rather than the grounding rod. (Id.) In addition, the Secretary asks that I defer 

to his interpretation of the regulation. (Id. at 9.) 

a. Ambiguity of the Phrase “Immediately After Installation”

As explained above, the parties interpret the phrase “immediately after installation” 

differently. Neither the Mine Act nor the regulation provides a definition for the phrase. Looking 

at the text of the regulation and the parties’ alternative interpretations, I conclude that it is in 

some respects ambiguous. Island Creek Coal Co., 20 FMSHRC 14 (Jan. 1998) (citing National 

R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 418-19 (1992)); Norman J. 

Singer, Sutherland Statutory Construction § 45.02, at 6 (5th ed. 1992) (“Ambiguity exists when 

a statute is capable of being understood by reasonably well-informed persons in two or more 

different senses.”). As the Supreme Court stated in Boston & Maine, “[f]ew phrases in a complex 

scheme of regulation are so clear as to be beyond the need for interpretation when applied in a 

real context.” 503 U.S. at 418. 

b. Reasonableness of Secretary’s Interpretation

Given my conclusion that the phrase “immediately after installation” is ambiguous as 

applied to the installation of a grounding rod on a power generator, I must decide whether the 

Secretary’s interpretation of the provision is reasonable. The Secretary’s interpretation of a 

regulation is reasonable where it is “logically consistent with the language of the regulation[s] 

and . . . serves a permissible regulatory function.” Gen. Electric Co. v. EPA, 53 F.3d 1324, 1327 

(D.C. Cir. 1995) (citing Rollins Envtl. Servs., Inc. v. EPA, 937 F.2d 649, 652 (D.C. Cir.1991)). 

Moreover, a policy favoring deference is particularly important where, as here, a technically 

complex statutory scheme is backed by an even more complex and comprehensive set of 

regulations. Id. Under such circumstances, “the arguments for deference to administrative 

expertise are at their strongest.” Gen. Electric Co., 53 F.3d at 1327 (citing Psychiatric Inst. of 

Washington, D.C. v. Schweiker, 669 F.2d 812, 813–14 (D.C. Cir.1981)); see also Chevron, 

U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 865 (1984) (finding that the 

Administrator’s interpretation represented a reasonable accommodation of manifestly competing 

36 FMSHRC Page 2521

Inspector Vidal issued Citation No. 6453941 for RECON’s failure to perform continuity 
interests and was entitled to deference because the regulatory scheme was technical and 

complex, the agency considered the matter in a detailed and reasoned fashion, and the decision 

involved reconciling conflicting policies.). 

 The Secretary interprets “immediately after installation” in section 56.12028 to mean 

immediately after the installation of the equipment that needs to be grounded. (Sec’y Post-Trial 

Br. at 8.) This interpretation focuses on the purpose of the regulation, which is to ensure that 

regular testing prevents fatalities and other injuries. See IV MSHA, U.S. Dep’t of Labor, 

Program Policy Manual, Part 21, at 44 (2003) (“PPM”) (“The intent of this standard is to ensure 

that continuity and resistance tests of grounding systems are conducted on a specific schedule. 

[N]umerous fatalities and injuries have occurred due to high resistance or lack of continuity in 

the equipment grounding systems. These accidents could have been prevented by proper testing 

and maintenance of grounding systems.”) (emphasis added); see also 30 C.F.R. § 56.1 (“This 

part 56 sets forth mandatory safety and health standards for each surface metal or nonmetal 

mine, including open pit mines, subject to the Federal Mine Safety and Health Act of 1977. The 

purpose of these standards is the protection of life, the promotion of health and safety, and the 

prevention of accidents.”). Testing “will alert the operator if a problem exists in the grounding 

system, which may not allow the circuit protective devices to quickly operate when faults 

occur.” IV MSHA, U.S. Dep’t of Labor, Program Policy Manual, Part 21, at 44 (2003). The 

Secretary’s interpretation does not deviate significantly from the language of the regulation. 

Furthermore, this interpretation is consistent with the purpose of the regulation reflected in 

MSHA’s PPM for 30 C.F.R. § 56.12028. As I noted, the preservation of safety is at the core of 

the regulation’s purpose. Testing the grounding system immediately upon installation of the 

equipment provides greater miner safety because it ensures the grounding rod and other elements 

of the grounding system are employed and tested. This provides the intended protection, 

especially if the generator is later energized. In contrast, allowing the generator to be installed 

without immediately testing the grounding system, as RECON suggests, provides less safety for 

miners from accidental electrocution. Thus, the Secretary’s interpretation serves a permissible 

regulatory function. Accordingly, I conclude that the Secretary’s interpretation is reasonable and, 

thus, entitled to deference. 

 

 c. Violation

 Respondent admits that it did not perform continuity and resistance testing on the power 

generator. (Resp’t Reply to Sec’y Post-Trial Br. at 2.) Therefore, I conclude that RECON 

violated 30 C.F.R. § 56.12028. 

 d. S&S

 RECON’s violation of 30 C.F.R. § 56.12028 establishes the first element for an S&S 

violation under the Mathies test. The second element of the Mathies test asks whether the 

violation contributed to a discrete safety hazard. Here, Inspector Vidal testified that the power 

generator’s lack of a grounding rod exposed anyone who came into contact with the generator to 

approximately 240 volts of electricity (Tr. 23:24–24:4) and that miners could come in direct 

contact with the generator. (Tr. 24:21; 25–2.) Vidal has significant experience inspecting mines 

36 FMSHRC Page 2522
(Tr. 17:17–25), and I accord his experience great weight. Accordingly, I determine that the 

violation contributed to the discrete safety hazard of electric shock. The Secretary has therefore 

met his burden of proof on the second element of Mathies. 

 The third and fourth elements of Mathies ask whether the safety hazard is reasonably 

likely to contribute to a reasonably serious injury. Here, Inspector Vidal testified that 240-volt 

electrocution would likely be fatal. (Tr. 25:14–17.) Given Vidal’s credible testimony, I 

determine that the Secretary has satisfied his burden of proving that reasonably serious injuries 

were reasonably likely to occur. Thus, the Secretary has satisfied Mathies’ third and fourth 

elements. 

 Based on my above determinations, I conclude that RECON violated section 56.12028, 

that the violation was S&S, and that it was the result of RECON’s moderate negligence. 

 3. Citation No. 6453945 – The Gang Box

 Section 56.12004 requires operators to protect electrical conductors that are exposed to 

mechanical damage.5 30 C.F.R. § 56.12004. An operator violates section 56.12004 when 

exposed cable or wiring that is capable of carrying an electrical current, thus creating a shock 

hazard, lacks an outer protective jacket or structure of some sort. See Northshore Mining Co., 

35 FMSHRC 1889, 1893 (June 2013) (ALJ); Baker Rock Crushing Co., 32 FMSHRC 968, 977 

(Aug. 2010) (ALJ). 

 a. Additional Findings of Fact

 Inspector Vidal issued Citation No. 6453945 because 13 damaged electrical extension 

cords with compromised outer protective coverings and exposed bare wiring were left in a gang 

box and available for use by miners. Specifically, Vidal testified that an unidentified employee 

told him that the gang box was unlocked and accessible by any miner. (Tr. 43:22–44:9.) 

Inspector Vidal also stated that two of the cords had completely exposed bare wiring, potentially 

exposing miners to 110 volts of electricity. (Tr. 49:6–12.) He indicated that the injuries resulting 

from 110-volt electrocution could range from a fatality to lost work days and restricted duty. (Tr. 

49:18–22.) 

 Respondent does not dispute the condition of the cords; indeed, RECON’s Cost Controls 

Manager, Benjamin Allen, admitted that at least some of the contents of the box were intended 

for use by miners (Tr. 112:21–113:1), and that the cords inside the box were unsuitable for use. 

(Tr. 116:4–8.) Instead, RECON alleges that the gang box was locked and, thus, the cords were 

 5

 Section 56.12004 provides: “Electrical conductors shall be of a sufficient size and 

current-carrying capacity to ensure that a rise in temperature resulting from normal operations 

will not damage the insulating materials. Electrical conductors exposed to mechanical damage 

shall be protected.” 30 C.F.R. § 56.12004. 

36 FMSHRC Page 2523
unavailable for use. (Resp’t Reply to Sec’y Post-Trial Br. at 3.) Specifically, Allen testified that 

the box was usually locked and was only unlocked for the inspection. (Tr. 113:3–114:3.) Allen 

also stated that there was only one key to the gang box and it was kept in a separate office. 

(Tr. 114:4–5.) Finally, Allen testified that equipment from the gang box had to be distributed to 

the miners by a supervisor per RECON’s safety manual, which they provided as evidence. 

(Tr. 114:20–24; 115:14–16; Ex. R–2.) 

I do not find Allen’s testimony regarding the locked gang box persuasive for three 

reasons. First, operators are not given advance notice of MSHA inspections; it is unlikely that 

the box was unlocked in anticipation of Inspector Vidal’s visit. Second, Respondent presented no 

evidence at the hearing indicating that Vidal “ordered all locked receptacles on site to be opened 

for his inspection,” as it alleges in its reply brief (Resp’t Reply to Sec’y Post-Trial Br. at 3.) 

Finally, Allen is RECON’s Cost Controls Manager. (Tr. 110:21–22.) Allen did not explain how 

his duties as a cost control manager provided a basis for explaining the actual day-to-day 

operations of the rank-and-file miner. On the other hand, an actual miner told Inspector Vidal 

that the gang box was openly accessible by miners and that miners could use the equipment 

within as needed. (Tr. 42:15–24.) Therefore, I find that the gang box was unlocked and the items 

inside, including the extension cords, were accessible by any miner. 

Inspector Vidal observed that 11 of the 13 extension cords had missing or damaged outer 

protective jackets (Tr. 47:16–19) and the remaining two were so damaged that bare wiring was 

visible. (Tr. 46:10–11.) Moreover, Vidal explained that, even with the bare wiring exposed, the 

extension cords were still capable of carrying a current. (Tr. 47:5–8.) Based on the evidence 

before me, I find that the 13 damaged extension cords were still functional and capable of 

carrying an electrical current. 

b. Violation

Respondent does not dispute that the outer protective jackets of the extension cords were 

damaged thus exposing the bare wiring. Given my finding that the cords were available for use, I 

conclude that RECON violated 30 C.F.R. § 56.12004 because the extension cords in the gang 

box were capable of carrying an electrical current and left with damaged or missing protective 

coverings. 

c. S&S

RECON’s violation of section 56.12004 establishes the first element for an S&S 

violation under the Mathies test. As for the second Mathies element, Inspector Vidal credibly 

testified that the bare wiring on the extension cords exposed the miners to a safety hazard of 

110-volt electric shock. (Tr. 46:7–11; 49:4–17.) As I have noted, I accord great weight Vidal’s 

testimony based on his significant experience as an inspector. I therefore determine that the 

violation contributed to a discrete safety hazard of 110-volt electric shock. Thus, the Secretary 

has met his burden of proof on Mathies’ second element. 

36 FMSHRC Page 2524
that the result of 110-volt electric shock would likely range from lost workdays to death. 

(Tr. 49:18–22.) I find his testimony regarding the electric shock hazard posed by the damaged 

extension cords credible and persuasive. Therefore, I determine that the Secretary has satisfied 

his burden of proving that reasonably serious injuries were reasonably likely to occur, and thus 

has satisfied the third and fourth elements of Mathies. 

d. Negligence

Vidal designated RECON’s negligence regarding this violation as “moderate” because 

the company is responsible for ensuring that any equipment that it brings on-site for use is 

checked daily. (Tr. 50:4–6.) Allen testified that, at some point, the gang box and access to the 

sole key was restricted. (Tr. 114:1–6.) Although RECON’s written safety policy was not 

followed here, I note that RECON’s safety manual requires that equipment such as the extension 

cords in the gang box be issued from a designated tool room attendant or supervisor. (Tr. 

115:10–16; Ex. R–2.) That policy somewhat mitigates RECON’s negligence in this case. Thus, I 

agree with Inspector Vidal’s determination that Respondent’s negligence is properly designated 

as moderate. 

Based on the above determinations, I conclude that RECON violated § 56.12004, that the 

violation was S&S, and that it was the result of RECON’s moderate negligence. 

4. Citation No. 6453946 –The Ground Prongs

Inspector Vidal issued Citation No. 6453946 because five cords in the same gang box had 

damaged or missing ground prongs. Moreover, a GFCI which is used to prevent electrocution 

was also damaged. 

a. Evidentiary Weight of The 2008 National Electrical Code

At trial, and without prior notice to the Secretary, Respondent introduced evidence 

regarding the 2008 version of the National Electrical Code (“the Code”)—a 600-page document. 

(Tr. 121:25–122:1.) Respondent admitted that it did not prepare this aspect of the hearing until a 

day prior. (Tr. 122:25–123:3.) RECON’s Corporate Health and Safety and Environmental 

Manager, Gregory Howearth, testified that some unidentified “MSHA documents” referenced 

the code. (Tr. 121:25–122:1.) Respondent contends that it is not a hazard to use GFCIs in 

conjunction with extension cords. (Resp’t Reply to Sec’y Post-Trial Br. at 3.) Further, 

Respondent claims that the Code supports its position. Id. 

Respondent’s eleventh hour introduction of the Code left the Secretary unable to 

adequately cross-examine Howearth on the document. At the hearing I had no reason to believe 

Respondent’s action was anything more than a mere oversight, so I admitted the Code into 

evidence. (Tr. 123:22–24.) Regardless, I do not find Respondent’s position on the Code 

persuasive. Respondent never identified the MSHA documents that purportedly reference the 

Code either at the hearing or in its post-hearing brief, and neither did Respondent establish their 

significance. Indeed, a miner using a damaged GFCI with a cord that has no grounding would 

36 FMSHRC Page 2525

Regarding the third and fourth elements of Mathies, Inspector Vidal credibly testified 
be exposed to the hazard of electrocution. Therefore, I conclude that Howearth’s testimony 

regarding the 2008 version of the National Electrical Code is irrelevant to 30 C.F.R. § 56.12025. 

 b. Violation

 Section 56.12025 states that “[a]ll metal enclosing or encasing electrical circuits shall be 

grounded or provided with equivalent protection.” 30 C.F.R. § 56.12025. As I found above, the 

damaged extension cords in the gang box were capable of carrying an electrical current and left 

unprotected and accessible by miners. Therefore, I conclude that RECON violated 30 C.F.R. 

§ 56.12025. 

 c. S&S

 Respondent’s violation of 30 C.F.R. § 56.12025 establishes the first element of the 

Mathies test. As for the second element, Vidal credibly testified that the use of an extension cord 

without a ground prong exposed miners to the safety hazard of electric shock. (Tr. 54:8–15.) In 

concluding that leaving extension cords with damaged or missing ground prongs available to 

miners constituted a violation, I have determined that a reasonably prudent person would 

recognize that allowing miners to use such damaged cords constituted a defect in safety. 

Likewise, I determine that the violation contributed to a discrete safety hazard of electric shock. 

Therefore, the Secretary has met his burden of proof on Mathies’ second element. 

 The third and fourth elements of Mathies ask whether the safety hazard is reasonably 

likely to contribute to a reasonably serious injury. The Secretary claims that injuries in this case 

are reasonably likely to result in lost workdays or restricted duty. (Ex. G–11.) Noting that these 

cords would likely carry 110 volts of electricity, Vidal described the potential injuries as a burn 

hazard, and heart defibrillation that could put a miner in the hospital. (Tr. 57:4–13.) Vidal 

determined this would reasonably likely result in lost workdays or restricted duty. As I noted, 

Inspector Vidal has significant experience inspecting mines. (Tr. 17:17–25.) Accordingly, given 

Vidal’s significant experience as an inspector, I give his testimony great weight and determine 

that the Secretary has satisfied his burden of proving that reasonably serious injuries were 

reasonably likely to occur, and has thus satisfied Mathies’ third and fourth elements. 

 d. Negligence

 Vidal designated RECON’s negligence regarding this violation as “moderate” due to the 

company’s obligation to ensure that any equipment it brings on-site for use is checked daily. 

(Tr. 50:4–6.) Allen testified that he believed access to the gang box was restricted at some point. 

(Tr. 114:1–6.) Moreover, RECON, through its safety manual, had contemplated procedures to 

monitor distribution of the equipment. (Tr. 115:10–16; Ex. R–2.) I find these factors to be 

somewhat mitigating and, thus, I agree with Vidal’s determination that Respondent’s negligence 

is properly designated as moderate. 

 

36 FMSHRC Page 2526
B. Citation No. 6454808 – Workplace Examination Violation

 1. Parties’ Arguments

 The Secretary argues that the text of Inspector Griffith’s citation itself, as well as his 

notes, establish a facial violation of 30 C.F.R. § 56.18002(a). (Sec’y Post-Trial Br. at 19.) 

Specifically, the Secretary points out that Citation No. 6454808 and Griffith’s notes mention that 

the alleged failure to perform and document a workplace examination contributed to the issuance 

of three S&S violations during the same inspection. (Id.) Although counsel for the Secretary 

acknowledges that the Secretary has the burden of proof, counsel nevertheless highlights 

Respondent’s failure to introduce any evidence regarding this citation. (Id.) 

 In contrast, Respondent argues that the Secretary has failed to meet his burden of proof 

regarding this citation. (Resp’t Reply to Sec’y Post-Trial Br. at 4.) Respondent further argues 

that RECON has no obligation to present evidence given its position that the Secretary failed to 

meet his burden of proof. (Id.) 

 2. Analysis and Conclusions of Law

 To establish the violation alleged in Citation No. 6454808, the Secretary must meet his 

burden of proof, which is by a preponderance of the evidence. To meet his burden of proof, the 

Secretary must demonstrate that “the existence of a fact is more probable than its non-existence.” 

RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000) (citations omitted). Put 

simply, “the evidence must be sufficient to convince the trier of fact that the proposition asserted 

is more likely true than not true.” Keystone Coal Mining Corp., 16 FMSHRC 857,896 (1994) 

(ALJ). Here, the Secretary presented only copies of Inspector Griffith’s citation and notes. Yet, 

in his prehearing report, the Secretary stated that he would call Inspector Griffith to testify 

regarding this citation. (Sec’y Preh’g Statement at 8.) Thereafter, at the hearing, the Secretary 

indicated that a MSHA field office supervisor was supposed to testify regarding Citation No. 

654808 but fell ill. (Tr. 14:14–17.) The Secretary could have asked for a continuance or, at a 

minimum, asked that the record be left open to introduce later deposition testimony from the 

then-ill MSHA supervisor. The Secretary pursued none of these options. 

 Instead, the Secretary chose to move forward with the hearing and circumvent the 

deficiencies in his presentation by attempting to introduce Inspector Griffith’s citation under the 

business records exception to hearsay evidence through the testimony of Inspector Vidal, who 

could provide no information on Citation No. 6454808 itself. (Tr. 14:12–20.) The Secretary’s 

attempt to use the business records exception is a red herring. It is a basic principle of 

administrative law that hearsay is admissible in federal and state administrative hearings. See 

Richardson v. Perales, 402 U.S. 389 (1971). Moreover, Commission Procedural Rule 63(a) 

specifically permits hearsay evidence in Commission proceedings. 29 C.F.R. § 2700.63(a). 

 I understand why the Secretary wants to introduce the citation into evidence under the 

business records exception to hearsay evidence, as I may then conclude that the text contained in 

the citation is somehow more reliable and should be taken at face value. However, Inspector 

36 FMSHRC Page 2527
Vidal did not issue Citation No. 6454808, did not speak to Inspector Griffith about this citation, 

and was not at Drake Quarry on the date the citation was issued. Moreover, it was not his job to 

be the custodian of records. The Secretary’s attempt to introduce the citation as a business record 

is unconvincing and inapposite. Nevertheless, the Commission’s Procedural Rules allow for the 

introduction of hearsay evidence, and I duly admitted the citation and notes at the hearing. Their 

admission, however, does not determine the weight I give such evidence. 

Indeed, the Secretary hopes to buttress his case by using the business records exception 

to the hearsay rule. Yet, in the end, it is still hearsay. With no foundation for the documents and 

no testimony to support the allegations and determinations contained in Citation No. 654808, I 

am left with little more than bald allegations to consider. In fact, I know nothing about the 

inspector who issued this citation or his qualifications, and nothing was admitted at hearing as 

evidence, such as an affidavit or deposition testimony, regarding Inspector Griffith or the 

issuance of this citation. As the Secretary well knows, MSHA vacates citations from time to time 

based on its view that the inspector erred in issuing a citation or in finding a violation, and 

Commission Judges have done the same. Without testimony from an inspector or witness who 

can substantiate the claims made in this citation, I have no way of determining the veracity of the 

charges contained in the citation. Thus, I am precluded from making any credibility 

determinations. 

In my view, what the Secretary asks me to do here offends the basic tenets of due 

process. Moreover, it offends basic concepts of fairness, inasmuch as the operator cannot 

cross-examine a sheet of paper. The Secretary’s attempt to find fault with Respondent’s refusal 

to put on a case against this citation is also dubious. It is a failed attempt to draw attention away 

from the deficiencies in the Secretary’s own case. All the Secretary has here is hearsay evidence, 

which I do not credit given the circumstances described and which I determine is insufficient to 

carry the Secretary’s burden of proof. Consequently, I vacate Citation No. 654808. 

VI. CIVIL PENALTIES

Under section 110(i) of the Mine Act, the Administrative Law Judge must consider six 

criteria in assessing a civil penalty: (1) the operator’s history of previous violations; (2) the 

appropriateness of the penalty relative to the size of the operator’s business; (3) the operator’s 

negligence; (4) the penalty’s effect on the operator’s ability to continue in business; (5) the 

violation’s gravity; and (6) the demonstrated good faith of the operator in attempting to achieve 

rapid compliance after notification of a violation. 30 U.S.C. § 820(i). 

Prior to the violations at issue, RECON has had no recorded history of violations. 

(Ex. G–1.) Of the five citations before me, I affirmed all but Citation No. 6454808. The 

Secretary has proposed a penalty of $2,272.00 for the remaining four citations. Nothing in the 

record suggests that this penalty is inappropriate for the size of RECON’s business or that it 

would infringe on RECON’s ability to remain in business. Moreover, after these citations were 

issued, nothing suggests that RECON failed to make a good faith effort to achieve rapid 

compliance with the safety standards. RECON was moderately negligent in all four violations, 

and each affirmed violation exposed miners to a reasonable risk of fatal injuries. In considering 

36 FMSHRC Page 2528

all of the facts and circumstances of this matter, I hereby assess a civil penalty of $2,272.00.
VII. ORDER

In light of the foregoing, it is hereby ORDERED that Citation Nos. 6453940, 6453941, 

6453945, and 6453946 are AFFIRMED. It is further ORDERED that Citation No. 6454808 is 

VACATED. It is further ORDERED that Respondent’s request to withdraw its contest of the 

civil penalty for Citation No. 6453944 is hereby GRANTED. 

WHEREFORE, Respondent is ORDERED to pay a penalty of $2,535.00 within 40 

days of this decision. 

/s/ Alan G. Paez

Alan G. Paez 

Administrative Law Judge 

Distribution: 

Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department of Labor,1999 Broadway, 

Suite 1600, Denver, CO 80202-5708 

Eugene F. McMenamin, Esq., Atkinson, Andelson, Loya, Ruud & Romo, 12800 Center Court 

Drive, Suite 300, Cerritos, CA 90703-9364 

/bm 

36 FMSHRC Page 2529
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, D.C. 20004 

September 30, 2014 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. KENT 2012-952 

Petitioner, A.C. No. 15-08079-284662-01 

 v. 

EXCEL MINING, LLC, 

 Respondent. 

Docket No. KENT 2012-953 

A.C. No. 15-08079-284662-02 

Mine: Mine No. 3 

DECISION

Appearances: J. Malia Lawson, Esq.,U.S. Department of Labor, Office of the Solicitor, 

Nashville, Tennessee, on behalf of the Secretary of Labor; 

Gary D. McCollum, Esq., Excel Mining, LLC, Lexington, Kentucky, on behalf 

of Respondent. 

Before: Judge Paez 

This case is before me upon the petitions for the assessment of civil penalty filed by the 

Secretary of Labor (“Secretary”) under section 105 of the Federal Mine Safety and Health Act of 

1977 (“Mine Act”), 30 U.S.C. § 815. These matters were called for hearing on September 11, 

2014, in Pikeville, Kentucky. For an hour beginning at the scheduled hearing time, the parties 

were permitted to attempt an amicable resolution of these dockets, given that counsel, witnesses, 

and the principals were all in attendance. At the conclusion of this period, I went on the record 

whereby the parties stated that they had resolved their differences. (Tr. 6–7.) Counsel for the 

Secretary specified the terms of the settlement, which I outline below, and counsel for Excel 

Mining, LLC (“Excel” or “Respondent”) concurred. (Tr. 7–8.) The parties read the terms of the 

settlement into the record and provided the rationale for the settlement agreement. (Tr. 7-10.) 

The Secretary’s originally proposed assessment for both dockets was $12,143.00, and the 

parties’ proposed settlement amount is $10,500.00. The proposed settlement is as follows: 

KENT 2012-952 

Citation/

Order No. Date 30 C.F.R. Assessment Settlement

8265645 01/10/2012 48.7(a)(3) $ 3,143.00 $ 2,500.00 

8268748 01/10/2012 50.10(b) $ 5,000.00 $ 5,000.00

Total: $ 8,143.00 $ 7,500.00 

36 FMSHRC Page 2530
KENT 2012-953 

Citation/

Order No. Date 30 C.F.R. Assessment Settlement

8268749 01/10/2012 50.12 $ 4,000.00 $ 3,000.00 

Cumulative Totals: $12,143.00 $10,500.00 

In support of the proposed settlement, the Secretary has submitted information pertaining 

to the six statutory civil penalty criteria found in section 110(i) of the Mine Act, 30 U.S.C. 

§ 820(i), including information regarding Respondent’s size, ability to continue in business, and

history of previous violations. In addition, the Secretary and Respondent have stated reasons on 

the record fully warranting the agreed upon reduction in the proposed penalties. 

After review and consideration of the pleadings, arguments, and submissions in support 

of the settlement motion, I find that the proposed settlement is reasonable and in the public 

interest. Pursuant to 29 C.F.R. § 2700.31, the motion is GRANTED, and the settlement is 

APPROVED. 

36 FMSHRC Page 2531
/s/ Alan G. Paez

Alan G. Paez 

Administrative Law Judge 

Distribution: 

J. Malia Lawson, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, 

Suite 230, Nashville, TN 37219-2456 

Gary D. McCollum, Esq., Assistant General Counsel, Excel Mining, LLC, 771 Corporate Drive, 

Suite 500, Lexington, KY 40503 

/cm 

36 FMSHRC Page 2532

ORDER

Respondent is ORDERED to PAY a civil penalty of $10,500.00 within 30 days of this 

Order.1 

Additionally, within the same 30 days, the Secretary is ORDERED to MODIFY the 

following: 

Gravity

Citation/Order 

No.

Standard Likelihood Severity S&S Number 

of 

Persons 

Affected

Negligence Type of 

Action

KENT 2012-952

2658645 To “Highly

Likely” 

N/A N N/A N/A N/A 

KENT 2012-953

8268749 N/A N/A N/A N/A N/A To

“104(a) 

Citation

” 

1 Payments should be sent to: U.S. Department of Labor, MSHA, Payment Office, 

P.O. Box 790390, St. Louis, MO 63179-0390. Please include docket and A.C. numbers. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, D.C. 20004-1710 

September 30, 2014

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 

 v. 

MACH MINING, LLC, 

 Respondent.

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2009-263 

A.C. No. 11-013141-173084-01 

Docket No. LAKE 2009-338 

A.C. No. 11-013141-175621 

 

Mine: Mach Mine No. 1

DECISION

Appearances: Sarah T. Weimer, Esq., U.S. Department of Labor, Office of the Solicitor, 

 Denver, Colorado, for Petitioner; 

 

 Christopher D. Pence, Esq., Allen Guthrie & Thomas, PLLC, Charleston, 

 West Virginia, for Respondent. 

Before: Judge Paez 

 

 This case is before me upon a Petition for Assessment of Civil Penalty filed by the 

Secretary of Labor (“Secretary”), pursuant to section 105 of the Federal Mine Safety and Health 

Act of 1977 (“Mine Act”), 30 U.S.C. § 815. In dispute are two section 104(a) citations issued to 

Mach Mining, LLC (“Mach” or “Respondent”), alleging violations at Mach’s Mach No. 1 mine. 

To prevail, the Secretary must prove his charges “by a preponderance of the credible evidence.” 

In re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 

1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub 

nom., Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1106–07 (D.C. Cir. 1998). 

This burden of proof requires the Secretary to demonstrate that “the existence of a fact is more 

probable than its nonexistence.” RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 

2000) (citations and internal quotation marks omitted), aff’d, 272 F.3d 590 (D.C. Cir. 2001). 

I. STATEMENT OF THE CASE 

 The Secretary filed his petitions for the assessment of penalty against Mach, and Mach 

timely filed its answers. Chief Judge Lesnick assigned consolidated Docket Nos. LAKE 

2009-263 and LAKE 2009-338 to me along with Docket No. LAKE 2009-264. The parties 

subsequently settled Docket No. LAKE 2009-264, and I disposed of the case in a separate 

Decision Approving Settlement. 

36 FMSHRC Page 2533
 The Secretary has proposed a total civil penalty of $4,800.00 for the two remaining 

citations, and I held a hearing on the record in Evansville, Indiana to determine the merits 

of the Secretary’s case.1

 Citation No. 6683204 charges Mach with violating 30 C.F.R. 

§ 75.380(f)(3)(iii) for obstructing a primary escapeway with a battery charging station, and 

alleges that Respondent’s conduct constituted high negligence.2 The Secretary presented the 

testimony of Mine Safety and Health Administration (“MSHA”) Inspector and Electrical 

Engineer Dean Cripps, while Respondent presented testimony from Mach General Manager 

Anthony Webb and Fire Safety Incorporated Sales Representative Lowell Holler. 

 In addition, Citation No. 6679603 charges Mach with violating 30 C.F.R. § 75.400 for 

failing to clean up and prevent the accumulation of coal dust, loose coal, and other combustible 

material.3 The Secretary also alleges that the condition was significant and substantial4 (“S&S”) 

and the result of Mach’s high negligence. The Secretary presented testimony from two 

inspectors, Inspector Edward Law and Inspector Bobby Jones, while Mach presented evidence 

from Webb, Mach Examiner Dave Adams, and Mach Mine Foreman Chris England. 

 1 In this decision, the following abbreviations are used: “Resp’t Prehr’g Rprt” refers to 

the Respondent’s Prehearing Report; “Br.” refers to a brief by either party; “Tr.” refers to the 

hearing transcript; “Sec’y Ex. #” refers to the Secretary’s exhibits; “Resp’t Ex. (Letter)” refers to 

Respondent’s exhibits. 

2

 Section 75.380(f)(3) provides: 

The following equipment is not permitted in the 

primary escapeway 

. . . . 

(iii) Underground transformer stations, battery 

charging stations, sub-stations, and rectifiers except– 

(A) Where necessary to maintain the escapeway in 

safe, travelable condition; and 

(B) Battery charging stations and rectifiers and power 

centers with transformers that are either dry-type or contain 

nonflammable liquid, provided they are located on or near a 

working section and are moved as the section advances or 

retreats. 

30 C.F.R. § 75.380(f)(3). 

3

 Section 75.400 provides: “Coal dust, including float coal dust deposited on rock-dusted 

surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on diesel-powered and electric equipment therein.” 30 C.F.R. 

§ 75.400. 

4

 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.” 

36 FMSHRC Page 2534
 Respondent has stipulated to my jurisdiction over this matter under the Mine Act, Mach’s 

status as an operator subject to the Mine Act, and the effect Mach’s coal has on interstate 

commerce. (Resp’t Prehr’g Rprt. at 1.) The Secretary and Respondent each submitted 

posthearing briefs and reply briefs. 

II. ISSUES

 The Secretary asserts that the conditions were properly cited as violations and the 

allegations underlying the citations were valid. (Sec’y Br. at 1.) Mach admits a violation of both 

cited safety standards but contends that Citation No. 6679603 should be modified to a non-S&S 

citation. (Resp’t Br. at 1.) Moreover, Mach asserts that both citations were improperly 

designated as resulting from Mach’s high negligence. (Id.) 

 Accordingly, the issues before me are as follows: (1) whether the record supports the 

Secretary’s assertions regarding the gravity of Citation No. 6679603; (2) whether the record 

supports the Secretary’s assertions in Citation Nos. 6683204 and 6679603 regarding Mach’s 

level of negligence; and (3) whether the civil penalties proposed by the Secretary are 

appropriate. 

 For the reasons set forth below, Citation Nos. 6683204 and 6679603 are AFFIRMED as 

written. 

III. BACKGROUND AND FINDINGS OF FACT

 The Mach No. 1 mine is a longwall coal mine in Johnston City, Illinois. (Sec’y Ex. 1; 

Tr. 18:8–9, 220:20–21, 263:8–11.) Mach Mine No. 1 is a “gassy” mine that liberates more than 1 

million cubic feet of methane per 24 hours. (Tr. 143:20–144:3.) Each panel of the Mach No. 1 

mine has a similar configuration and is generally about 18,000 feet in length. (Tr. 27:20–22, 

30:13, 84:16–19.) A system of conveyor belts carries the coal to the main belt. (Tr. 13:7–8, 

118:11–14.) The main belt—also known to as the “second east belt”—runs the entire 

18,000-foot length of the longwall and carries the coal out of the mine. (Tr. 13:7–8, 118:11–14.) 

Mach Mine No. 1 also maintains sprinkler systems and carbon monoxide (“CO”) monitors as fire 

suppression and detection equipment in the Second East Headgate area of the mine. 

(Tr. 157:4–161:5, 255:4–11.) 

 In the fall of 2008, a temporary belt—known as a pony belt—extended into a setup room 

area to facilitate transfer of coal to the second east belt. (Sec’y Ex. 1; Tr. 114:5–23, 118:2–4.) 

The pony belt transferred the coal from the setup room onto the second east belt. (Sec’y Ex. 1; 

Tr. 115:12–117:23.) The pony belt and second east belt were the same width, making spillage 

common at the transfer point. (Tr. 13:9–13, 119:11–18, 231:12–23, 253:12–24.) 

 The mine also maintains primary and secondary escapeways for each section, which 

provide miners in the working area a safe pathway to exit the mine in the event of an emergency. 

(Tr. 24:15–25:10, 32:7–9.) Primary escapeways are designed to be ventilated with intake air 

36 FMSHRC Page 2535
fresh from the surface to prevent smoke contamination of the main escape route in the event of a 

mine fire. (Tr. 24:24–25:3.) Alternate escapeways are separated from the primary escapeway in 

their entirety, but they need not be ventilated with intake air. (Tr. 25:4–10.) 

IV. PRINCIPLES OF LAW

A. General Principles Governing Significant and Substantial (“S&S”) Designations

A violation is S&S “if, based on the particular facts surrounding that violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

To establish an S&S violation, the Secretary must prove: “(1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazard—that is, a measure of danger to 

safety—contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to 

will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted);

see also Buck Creek Coal, Inc., 52 F.3d at 135–36 (affirming ALJ’s application of the Mathies

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

Mathies criteria). 

 The third Mathies element is often heavily contested. In the accumulations context, the 

third element is met where a “confluence of factors,” such as the extent of the accumulation and 

presence of possible ignition sources, make the hazard reasonably likely to result in injury. See 

Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997). This evaluation should be made 

assuming continued normal mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 

(Aug. 1985) (citing U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)). Materials need 

not be hot when inspected to prove friction as an ignition source, if heat will eventually result 

during continued normal mining operations. Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222 

(June 1994) (finding the lack of a hot spot immaterial where friction was present between belt 

rollers and accumulations). 

The Commission has also provided guidance to Administrative Law Judges in applying 

the Mathies test. The Commission has indicated that “an inspector’s judgment is an important 

element in an S&S determination.” Mathies, 6 FMSHRC at 5 (citing Nat’l Gypsum, 3 FMSHRC 

at 825–26); see also Buck Creek Coal, 52 F.3d at 135 (finding no abuse of discretion where ALJ 

credited opinion of experienced inspector). 

B. General Principles Governing Determinations of 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 risk of harm. 30 C.F.R. 

§ 100.3(d). Mine operators are held to a high standard of care, and failure to exercise such care

constitutes negligence. Id. An operator is required to be alert for conditions affecting the health 

and safety of miners, while taking preventive and/or corrective action to address hazardous 

conditions or practices. Id. MSHA may consider mitigating circumstances which can include the 

36 FMSHRC Page 2536

operator’s actions to prevent or correct hazardous conditions or practices. Id. 
Estoppel defenses are not generally available against the federal government. See, e.g., 

Knob Creek Coal Co., 3 FMSHRC 1417, 1421 (June 1981). Inspectors’ previous representations 

about compliance with a regulation do not estop MSHA from issuing future citations, 

Nolichuckey Sand Co., 22 FMSHRC 1057, 1063–64 (Sept. 2000), but detrimental reliance on an 

inconsistent interpretation is properly considered in mitigating the penalty. U.S. Steel Mining, 

Co., 6 FMSHRC 2305, 2310 (Oct. 1984) (indicating that a local MSHA office’s past approval of 

operator’s transportation methods does not negate an S&S finding and noting that detrimental 

reliance may be considered in mitigation of penalty). 

V. FURTHER FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW

A. Citation No. 6679603 — The Accumulations Violation

1. Additional Findings of Fact

a. Roof Fall, Inspection, and Accumulations — October 30

The early hours of October 30, 2008, were a busy time at Mach Mine No. 1. At 

approximately 2:00 a.m., Mach began to move the temporary pony belt connecting the mine’s 

setup room to the second east belt, which would be a four or five hour process.5

 

(Tr. 240:17–241:7.) Meanwhile, at approximately 2:30 a.m., Adams identified coal 

accumulations in the second east belt tail area, deenergized the belt, and notified Mach’s 

foreman that the belt tail needed to be cleaned. (Tr. 228:15–21, 229:1–12.) However, a roof fall 

occurred in the Second East Headgate area between 3:00 a.m. and 3:30 a.m. (Tr. 239:2–3.) 

Finally, at some point overnight prior to 7:00 a.m., a miner injured himself while installing 

supplemental support in another area of the mine. (Tr. 204:20–22, 205:8–11, 246:21–23.) 

Two MSHA inspectors, Inspector Jones and Inspector Law, independently responded to 

the report of the roof fall. (Tr. 110:8–12, 113:4–5, 204:8–14, 205:4–5.) Inspector Jones arrived at 

Mach Mine No. 1 at approximately 6:30 a.m. (Tr. 204:8–14, 205:4–5, 122:18–22, 136:9–13, 

137:13–15, 205:17–18.) He verbally issued a section 103(k) order at approximately 7:15 a.m., 

which required Mach to evacuate the area near the roof fall—including the area of the 

accumulations, which was approximately 400 feet away. (Tr. 123:6–11, 148:3–6, 208:4–10, 

210:6–10, 14–17.) After Jones issued the section 103(k) order, Mach was prohibited from 

accessing the Second East Headgate area, including the junction point between the pony belt and 

main belt. (Tr. 185:2–5.) Jones testified that he saw the accumulations at the tail piece of the 

second east belt on his way to the roof fall area. (Tr. 206:4–8.) According to Jones, he did not 

immediately cite the accumulations because he was “more concerned with getting the roof 

control—the roof fall investigation so I could go and investigate the accident to the miner.” 

(Tr. 206:11–14.) 

5

 However, the stopped pony belt did not require the main belt to stop. (Tr. 190:10–15.)

36 FMSHRC Page 2537
 Later that morning, Law received a call regarding the roof fall at Mach No. 1 Mine. 

(Tr. 110:8–11.) While traveling to the roof fall area, Law also observed the accumulations at the 

head of the pony belt and the tail of the second east belt. (Tr. 113:12–24.) At 10:40 a.m., Law 

issued a section 104(a) citation to Mach for violating 30 C.F.R. § 75.400. Law’s citation states: 

The [Second] East Headgate belt tail has been running in 

accumulations of combustible materials in the form of coal fines, 

loose coal and coal. The accumulations are in front of, along the 

sides of and under the belt tail area. They range from 5 to 10 feet 

in length, 3 to 4 feet wide and from 6 to 24 inches in depth. The 

bottom belt has been running in coal and is in contact with the belt, 

under the tail pulley and in contact on both sides of the tail pulley. 

The accumulations of combustible materials are also built up under 

the pony belt scrapers in contact with the belt 10 to 18 inches in 

depth and the width of the belt. There has been a roof fall on the 

pony belt and the belts are currently not operating. 

(Sec’y Ex. 7.) The accumulations were dark in color6

 and were not rock dusted.7 (Sec’y Ex. 7; 

Tr. 120:2–7,0 121:9–10.) Although the second east belt was not running at the time, it appeared 

the accumulations were extensive and had been in contact with both sides of the belt. (Sec’y Ex. 

7; Tr. 113:24, 114:1, 119:1–3.) According to Law, belt friction provided an ignition source. 

(Tr. 145:8–10.) He also indicated the accumulations appeared to have been there “for a while.”8

(Tr. 156:3–4.) 

 As to the extent of the accumulations, Law observed loose coal spilled along both sides 

of the belt, behind it, and underneath the head area. (Sec’y Ex. 7; Tr. 118:23–119:1.) Law 

measured the accumulations with a tape measure and described them as being five to 10 feet out 

along the sides of the belt tail and pony belt head area, three to four feet wide, and six to 24 

inches deep. (Sec’y Ex. 7; Tr. 126:18–19, 113:19–20.) Underneath the pony head area, there 

 6

 Although General Manager Webb testified that the accumulations were mostly rock 

(Tr. 251:12–19), I note that Law credibly testified that the material was coal. (Tr. 126:21–24.) 

Moreover, Respondent’s own witness, Foreman England, testified that the accumulations had “a 

little bit of rock and coal.” (Tr. 270:15–17 (emphasis added).) Thus I credit Law’s description 

regarding the composition of the accumulations. 

7

 Law did note that the surrounding area was rock dusted “fairly well” but indicated the 

accumulations, which were “pretty distinct in color,” were not. (Tr. 121:8–14.) 

8

 At the hearing, Inspector Law admitted he did not specifically know whether Mach had 

performed any work during the October 29 afternoon shift to address the accumulations noted in 

its afternoon examination books. (Tr. 156:24–157:2, 188:16–20.) However, Law noted that 

Mach’s exam records from both the October 29 afternoon and October 30 midnight shifts 

identified accumulations at the belt tail area but listed no corrective action had been taken. 

(Tr. 155:2–14; see also Resp’t Ex. B.) Inspector Law therefore inferred that the accumulations 

had been there for a “fairly long length of time.” (Tr. 155:9–11.)

36 FMSHRC Page 2538
were 10 to 18 inches of coal accumulations, such that the belt was “actually sitting on top of the 

coal.” (Sec’y Ex. 7; Sec’y Ex. 8; Tr. 113:21–24.) 

Based on his observations, Law also determined that the violation was S&S and the result 

of Mach’s high negligence. (Sec’y Ex. 7; Tr. 111:7–13, 152:15–154:16, 164:1–165:17.) 

b. Additional Findings of Fact — Mach’s Corrective Measures

Although Respondent admits that the cited accumulations were present in the belt tail 

area, Mach disputes Inspector Law’s determination regarding the duration of the violative 

condition. (Resp’t Br. at 2–3, 12–13.) Instead, Mach claims that the accumulations were a recent 

spill. Specifically, Respondent points to Examiner Adams’ testimony to suggest that 

accumulations listed in the exam book for the afternoon shift on October 29 had been cleaned. 

Adams worked a 9:00 p.m. to 7:00 a.m. shift at Mach Mine No. 1 on October 29 and October 30. 

(Tr. 224:22–23, 238:1–3.) Between 9:30 p.m. and 10:00 p.m. on October 29, Adams passed by 

the second east belt tail area. (Sec’y Ex. 7; Tr. 227:2–9, 228:10–11.) Adams testified that the 

accumulations described in Citation No. 6679603 were not consistent with his observations at 

9:30 p.m. (Tr. 228:1–3.) According to Adams, at 9:30 p.m. the main belt and pony belt were 

running, and the tail rotor was clear. (Tr. 228:4–14.) Mach thus claims that the accumulations 

from the October 29 afternoon shift must have been cleaned before Adams’ 9:30 p.m. 

observations. (Resp’t Br. at 14.) 

Despite Adams’ testimony, the evidence in this case convinces me that Respondent made 

no attempt to clean or address the accumulations at issue until Adams shut down the second east 

belt at 2:30 a.m. First, Inspector Law credibly testified that he believed no corrective action had 

been taken based on the amount of coal accumulations he found during his examination. As Law 

explained: “If it had been cleaned up twice prior to that, then they had an awful spill occurring . . 

. when whatever took the belt down, whoever took the belt down . . . it was running in coal and it 

had built up to the point that it was a pretty good size accumulation. . . . [I]f it was [cleaned up], 

then the spill they had ongoing was creating a very big hazard.” (Tr. 156:15–157:3.) In Law’s 

opinion, therefore, no corrective action had been taken between the October 29 afternoon shift 

and his inspection on October 30. (Tr. 156:15–17.) Law has more than 27 years experience as a 

miner and inspector. (Tr. 108:9–109:24.) His opinion is therefore entitled to significant weight. 

See Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278–79 (Dec. 1998) (relying on the 

opinion of an experienced inspector to conclude that substantial evidence supported the ALJ’s 

S&S determination). 

Second, Adams admitted he was not making a belt examination when he made his 9:30 

p.m. observation; instead, he was in the area to examine a belt transformer. (Tr. 228:4–10.) 

Though Adams may have observed the area, his observation was not focused on the 

accumulations. In fact, during the hearing Adams gave no basis to believe his 9:30 p.m. 

observation of the belt tail area was at all rigorous. I therefore give no weight to Adams’ 

testimony on this point. 

36 FMSHRC Page 2539
England, or Adams nor other evidence identifying any actual corrective action taken to clean up 

the accumulations.9 Based on the above, I therefore find Mach made no corrective actions to 

clean up the accumulations between the time the afternoon examiner observed them and the roof 

fall occurred at approximately 3:30 a.m. 

2. Legal Analysis

a. Conclusion of Law — S&S Determination

Mach stipulated to a violation of 30 C.F.R. § 75.400, fulfilling the first Mathies factor. 

As I noted, Law credibly testified that the belt was in contact with the coal and an ignition was 

possible. Moreover, a belt running in coal may lead to a belt fire, creating smoke affecting 

anyone in the belt entry and increasing the chance of an explosion. See Black Diamond Coal 

Mining Co., 7 FMSHRC 1117, 1121 (August 1985) (recognizing that coal can dry out and 

ignite). Thus, the accumulation contributed to a discrete safety belt fire safety hazard, and I 

determine that the Secretary has satisfied the second element of the Mathies test. 

Mach also claims that injuries were not reasonably likely to occur, which is the third 

Mathies element.10 (Resp’t Br. at 10–12.) First, Respondent contends that if an ignition did 

9

 Mach’s posthearing briefs note that operators are allowed 24 hours to mark corrective 

actions in their examination books and that those 24 hours had not passed when Law inspected 

Mach’s examinations books. However, Respondent’s own brief highlights its lack of evidence: 

“Presumably, the accumulations noted during the afternoon shift (before 11:00 p.m. on October 

29) could have been cleared prior to Mr. Adams’ examination at approximately 9:30 p.m. that

evening.” (Resp’t Br. at 14 (emphasis added).) Undeterred, Mach apparently hopes I will 

hypothesize about the corrective actions it might have taken and infer that those actions 

occurred. Yet, such conjecture provides no actual evidence from which I might infer that Mach 

actually cleaned the accumulations noted on its afternoon exam books.

10 Mach also included several other arguments that bear brief discussion, but which are 

ultimately inapposite. First, Mach suggests an ignition was unlikely because the material under 

the belt tail was wet and mostly rock. (Resp’t Br. at 10; Resp’t Reply Br. at 5.) However, I have 

credited Inspector Law’s description of the accumulations. See discussion supra note 6. Here, 

Inspector Law indicated that the friction created from the belt contacting the coal would dry out 

the coal and provide an ignition source. (Sec’y Ex. 8; Tr. 135:14–19.) In addition, the 

Commission has consistently found that wet or damp coal will dry out and fuel or propagate a 

fire or explosion. See, e.g., Consolidation Coal Co., 35 FMSHRC 2326, 2329–30 (Aug. 2013) 

(citing Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120–21 (Aug. 1985), and 

Mid-Continent Res., Inc., 16 FMSHRC 1226, 1230, 1232 (June 1994)). 

Mach also claims that its CO detection and fire suppression systems would alert affected 

miners to evacuate. (Tr. 15:12–21; Resp’t Br. at 11–12.) Likewise, Mach suggests that personnel 

doors on the belt entry would allow a belt examiner to escape in the event of a fire. (Resp’t Br. at 

11–12). However, the presence of other fire safety equipment like CO monitors and personnel 

(continued...) 

36 FMSHRC Page 2540

Finally, Mach produced neither testimony from General Manager Webb, Mine Foreman 
occur, the direction of air flow in the entry meant that “smoke would travel outby away from 

miners in the working section.” (Id. at 11.) Second, Respondent claims that the belt did not 

provide a possible ignition source because it had been deenergized. (Id. at 10–11.) Finally, 

Mach claims that it would have cleaned the violative accumulations in the course of normal 

mining operations before the second east belt was reenergized. (Id. at 14–15.) 

Nevertheless, the evidence before me demonstrates that the Secretary has satisfied his 

burden of proof on Mathies’ third element. Here, Law credibly testified that the second east belt 

had been running in coal. According to Law, one miner would be exposed to the hazard of a belt 

fire because the belt examiner that regularly checked the belt system would encounter smoke. 

(Tr. 154:8–9.) Regardless of the air flowing away from the miners on working section, a belt fire 

would therefore reduce visibility and make it difficult for the examiner to breathe or find his or 

her way out of the mine. 

Respondent’s claim that the deenergized belt did not provide an ignition source is 

similarly inapposite. Although the second east belt had been deenergized at the time Law issued 

Citation No. 6679603, the belt was running in accumulations when Adams observed the 

accumulations at 2:30 a.m. Cf. Rushton Mining Co., 11 FMSHRC 1432, 1435 (Aug. 1989) 

(noting that “[t]he operative time frame for determining if a reasonable likelihood of injury exists 

includes both the time that a violative condition existed prior to the citation and the time that it 

would have existed if normal mining operation had continued.”) (emphasis added). Thus, the 

second east belt provided a source of ignition for several hours before Adams took any steps to 

shut down the belt. 

In addition, the evidence suggests the belt was reasonably likely to be reenergized in the 

course of normal mining operations. Notwithstanding the belt shut down and Inspector Jones’ 

section 103(k) order, Respondent failed to clean the accumulations for several hours prior to the 

3:30 a.m. roof fall. Thus, it appears that cleaning the accumulations was not a priority for 

Respondent. Indeed, England admitted that he prioritized conditions listed in Mach’s exam 

books. (Tr. 265:14–9.) In this context, the belt could be purposefully or inadvertently 

reenergized after Mach addressed the roof fall and completed its pony belt move. Cf. Knox Creek 

Coal Corp., 36 FMSHRC 1128, 1141 (May 2014) (concluding that an accumulation was S&S 

where the operator had already dispatched a clean-up crew to an accumulation running in coal 

10 (...continued) 

doors does not decrease the likelihood of injury. Buck Creek Coal, 52 F.3d at 136 (stating that 

the presence of fire safety measures does not mean that fires do not pose a serious safety risk to 

miners). 

Finally, Mach claims that methane was not present at the time of the violation. (Resp’t 

Br. at 12.) I note that Mach Mine No. 1 is a gassy mine and methane may develop quickly. 

Nevertheless, it is unclear why Respondent believes methane is a necessary prerequisite for an 

ignition. As Inspector Law credibly testified, a fire may occur when a “fire triangle” is present. 

(Tr. 144:23–145:3.) A “fire triangle” has three components: an ignition source, fuel, and oxygen. 

(Tr. 145:1–3.) Law identified all three fire triangle components—an ignition source (the belt 

friction), fuel (the accumulations of coal), and oxygen (in the air). (Tr. 145:8–10.) 

36 FMSHRC Page 2541
because the Commission could not assume the clean up would be completed before production 

resumed.) Given the presence of an ignition source, the size of the coal accumulation, the 

amount of time that the accumulations existed and ran in coal, Mach’s previous inaction, and the 

possibility that the belt would be reenergized in continued mining operations, the confluence of 

factors in this case convinces me that the hazardous condition was reasonably likely to result in 

injury. I therefore determine that the third Mathies element has been satisfied. 

Finally, Law also credibly testified to the seriousness of the injuries a belt fire would 

cause. Specifically, Law testified that a belt fire is reasonably likely to result in smoke inhalation 

and carbon monoxide poisoning injuries. (Tr. 154:8–16.) As the Commission has observed, 

smoke inhalation and carbon monoxide poisoning are serious injuries. Cf. Big Ridge, Inc., 35 

FMSHRC 1525, 1533 (June 2013) (affirming judge’s S&S determination where the hazard was 

reasonably likely to result in smoke inhalation, carbon monoxide poisoning, and burns); see also

Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120 (Aug. 1985) (indicating that “ignitions 

and explosions are major causes of death and injury to miners.”). Accordingly, I determine that 

the Secretary has also satisfied the fourth element of Mathies. 

Based on the foregoing, I determine that the Secretary has established all four elements 

under Mathies and conclude that this violation was properly designated as S&S. 

a. Conclusions of Law — Negligence Determination

The Secretary contends that Respondent’s knowledge of the violative condition, notice 

that greater efforts were necessary for compliance, history of previous violations, the extent and 

obviousness of the accumulations, and the danger the accumulations presented each demonstrate 

Mach’s high negligence. (Sec’y Br. at 21–22.) In contrast, Mach argues that the high negligence 

designation is improper because: (1) Examiner Adams shut off the belt upon discovery of the 

accumulations and instructed the foreman to clean up the accumulations; and (2) the roof fall and 

the resulting section 103(k) order prevented Mach from cleaning up the accumulations for a 

lengthy period before Inspector Law issued the citation.11 (Resp’t Br. at 16–17.) 

Here, Mach knew that coal commonly accumulated at the transfer point where coal from 

the pony belt was dumped onto the main belt. (Tr. 13:5–11.) As Adams observed, accumulations 

and spillage occurred in that area “pretty often.” (Tr. 231:23.) Likewise, General Manager Webb 

noted that coal accumulated at this transfer point because the two belts were the same width, 

causing significant build-up on the sides of the main belt. (Tr. 253:12–15.) Despite this 

knowledge, Mach allowed significant amounts of coal to accumulate under the belt. Indeed, 

Inspector Law’s testimony and description in Citation No. 6679603 detail the extent of the 

11 Mach also suggests the accumulations listed in the exam book from the afternoon shift 

on October 29 had been cleaned and that the accumulations at issue in Citation No. 6679603 

resulted from spillage. (Resp’t Br. at 16–17.) However, I have found that Respondent took no 

steps to clean the accumulation in the belt tail area prior to the roof fall. See discussion supra

Part V.A.1.b. 

36 FMSHRC Page 2542
violation. (Sec’y Ex. 7; Tr. 125:20–126:2.) Mach was also on notice of the specific 

accumulations at issue beginning on the afternoon of October 29. (Tr. 13:14–19.) Thus, 

Respondent was on notice that accumulations were likely to arise at this transfer point and knew 

about the actual violative conditions in question. 

Moreover, Law stated that Mach could have promptly cleaned up the accumulations with 

a shovel. (Tr. 150:3–7.) In fact, Mach quickly corrected the condition after Law issued Citation 

No. 6689603. (Tr. 237:14–16.) Compared with the danger the accumulations presented, it 

appears that cleaning the accumulation would have been relatively simple. Yet, Mach took no 

steps to clean the condition prior to the roof fall at 3:30 a.m. 

Further, the evidence before me does not demonstrate any mitigating factors. Although 

Adams instructed the foreman to shut off the main belt because it was “gobbed out” (Tr. 228:24, 

258:11–14), Adams’ efforts neither prevented nor corrected the hazardous condition: the coal 

accumulation remained under the belt line. Rather than mitigate its negligence, Mach’s 

willingness to shut down the belt and halt the transportation of coal out of the mine highlights 

just how negligent Mach had been in allowing the situation to progress over several hours. At 

that point, the accumulations must have been so serious that Mach was willing to stop the 

transport of coal despite the slowdown to its operations. Moreover, neither Adams’ action nor 

the roof fall precluded the main belt’s purposeful or inadvertent reengagement in the hours prior 

to the section 103(k) order at 7:15 a.m. or after the roof fall had been addressed. If the belt were 

reenergized, the belt remained an ignition source for a dangerous belt fire. 

Mach’s claim that it would have cleaned the violative accumulations if the roof fall had 

not occurred is likewise unavailing. (Tr. 233:17–23.) It is true that the early morning hours of 

October 30 were busy ones at Mach Mine No. 1. A miner had been injured. A roof had fallen. 

Focusing on the roof fall and injured miner is a seemingly rational decision; indeed, Inspector 

Jones himself testified that he bypassed issuing the accumulation citation to attend to the roof 

fall and injured miner.12 Superficially, Mach’s reasons for not cleaning the accumulations in 

those hectic early morning hours might seem to mitigate Respondent’s negligence. Yet when 

examined more closely, Mach’s argument ignores hours of inactivity preceding the roof fall. 

Despite the ease with which Mach could have cleaned the accumulation, Respondent took no 

steps to address the violative condition between the afternoon shift on October 29 and the roof 

fall at 3:30 a.m. on October 30. 

For the foregoing reasons, I find the Secretary met his burden to prove Mach’s high 

negligence concerning Citation No. 6679603. In light of my conclusion that this violation was 

also S&S, Citation No. 6683204 is hereby AFFIRMED as written. 

12 Jones explained: “If it had been an normal day, I would have cited it, or if it—even if it 

had just been the roof fall, I probably would have cited it. My number one intention when I went 

below was to get where the miner was injured where I could look it over.” (Tr. 212:10–15.) 

36 FMSHRC Page 2543
1. Additional Findings of Fact

a. Additional Findings of Fact — Prior Citation

A battery charger is a large piece of electrical equipment, measuring approximately six 

feet long, three feet wide and two to three feet high. (Tr. 41:22–24.) Battery chargers connect, or 

plug in, to belt power centers through a cable attached to the charger. (Tr. 26:11–27:4.) The end 

of the battery charger cable, called a cathead, plugs into the belt power station. (Tr. 34:10–12.) 

When a lock is placed on the cathead, the battery charger’s cable cannot be plugged into the belt 

power center and thus the battery charger cannot be energized unless the lock is removed. (Tr. 

38:8–11, 93:7–12.) 

On October 28th, 2008, Inspector Cripps cited Mach for a violation of 30 C.F.R. 

§ 75.380(f)(3)(iii) because he had found two charging stations in same primary escapeway.

(Sec’y Ex. 5; Tr. 35:11–19.) After the October 28th citation, Mach moved the charger to the 

surface so to allow Fire Safety, Incorporated (“Fire Safety”) to update its fire suppression 

system. (Tr. 11:13–15, 104:18–23.) According to Sales Representative Holler, Fire Safety 

completed the update on October 29, tagged the charger, completed an inspection report, and left 

it on the surface of the mine because it was not Fire Safety’s responsibility to return the charger 

underground. (Tr. 104:14–16. 105:3–8; Resp’t Ex. C.) 

On November 7, another inspector terminated the October 28 citation when the charger 

cable was locked out.13 (Sec’y Ex. 5; Tr. 36:19–37:1, 46:22–47:7, 68:21–22, 75:11–12, 

100:5–16.) At some point, someone returned the charger to the primary escapeway, but the 

means by which it returned and the actual date of return is unknown. (Tr. 98:3–7.) General 

Manager Webb testified that he did not order any Mach employees to return the charger to the 

primary escapeway, does not have a way of knowing who returned the charger underground, and 

did not know the charger was returned to the primary escapeway until November 15 or 16. (Tr. 

88:14–23.) When Webb found the charger in the escapeway, he saw its power cable rolled out 

towards the power center, with the cathead laying on the ground unlocked. (Tr. 93:12–19, 

98:17–21, 99:19–22.) Webb then directed his longwall maintenance chief, Dallas Travelstead, to 

put a lock on the cathead. (Tr. 89:15–18, 93:5–10, 99:16–18.) 

b. Cripps’ November 17, 2008 Inspection

On November 17th, 2008, Inspector Cripps conducted an inspection of Mach No. 1 mine. 

(Sec’y Ex. 6; Tr. 19:10–15.) During his inspection, Cripps noticed a battery charging station 

parked in the primary escapeway at Headgate Number 2, about one and a half miles away from 

the working section. (Tr. 24:8–10.) The charging station was not being used to maintain the 

13 Cripps, however, would not have terminated the October 28 citation simply for locking 

out the charger’s cathead; instead, he would have required removal from the primary escapeway. 

(Tr. 37:10–14.) As Cripps noted, merely locking the cathead would allows “anybody [with] . . . a 

key . . . [to] go up and simply take the lock off and plug it in and begin charging with it at any 

time.” (Tr. 38:4–11.) 

36 FMSHRC Page 2544

B. Citation No. 6683204 — The Charging Station Violation
escapeway. (Sec’y Ex. 5; Tr. 23:21–24:6.) The charger cable was locked out, but it was extended 

to the belt power center one crosscut inby. (Sec’y Ex. 5–6; Tr. 34:7–12, 43:5–14, 38:8–11.) 

Cripps also noticed a battery-operated scoop located in the charging station in a position to be 

charged, although it was not charging at the time. (Tr. 23:8–9, 26:2–3, 31:5–6.) As Cripps 

observed the condition, Greg Patton, a foreman, approached the area and told Cripps he had 

come to see if his scoop was charged up. (Sec’y Ex. 6; Tr. 44:19–45:5.) Patton told Cripps he 

normally charged his scoop in this location, and he did not know whose lock was on the charging 

station. (Tr. 45:17–20.) 

Based on his inspection and observations, Cripps issued Citation No. 6683204, 

indicating: 

A scoop charging station, No. 4 charger, was located at No. 78 

crosscut of the HG #2 primary escapeway and was not being used 

to maintained [sic] the escapeway. The cable that supplies 480 

volts to the charger extended to the belt power center at No. 79 

crosscut and was locked out. This charging station was cited on 

10/28 for being in the primary escapeway. The citation was 

terminated when the charger was locked out. Evidence indicates 

that this charger has been being used since the previous citation 

was issued and terminated. 

(Sec’y Ex. 5; Tr. 21:20–24, 49:6–51:1.) In addition, Cripps determined the violation was the 

result of Mach’s high negligence. (Id.; Sec’y Ex. 6; Tr. 50:8–52:1, 57:24–58:10.) 

2. Conclusion of Law — Negligence Determination

Mach argues that it did not receive notice that MSHA would no longer accept a 

locked-out cathead as abating the 30 C.F.R. § 75.380(f)(3)(iii) violation. (Resp’t Br. at 20–22.) 

Mach notes that the charger’s cathead was locked out—purportedly in conformance with the 

abatement procedures approved in abating its October 28 citation—when Cripps found it in the 

primary escapeway. (Resp’t Br. at 20–22.) Mach argues, therefore, that conformance with prior 

abatement should mitigate its negligence. The Secretary argues the battery charger’s return to the 

escapeway after its October 28 citation makes Mach negligent and contends the lock on the 

cathead does not mitigate Respondent’s negligence.14 (Sec’y Br. at 10–12.) 

14At the hearing and in their briefs, the parties disagreed whether Foreman Patton used 

the battery charger in the interim between the October 28 citation and November 17 citation. 

(See, e.g., Resp’t Br. at 7–8.) Yet, it is unclear why the chargers’ actual use would measurably 

affect Mach’s negligence in this case. As General Manager Webb admitted, the cathead had been 

unlocked and extended toward the power center when he found the charger in the primary 

escapeway just one or two days before Inspector Cripps issued Citation No. 6683204. (Tr. 

93:7–8, 99:19–22.) It is also appears that Mach’s management did not closely monitor the use of 

the charger. Indeed, Webb admitted he did not know how or when the charger returned to the 

(continued...) 

36 FMSHRC Page 2545
Although I recognize that prior forms of abatement might be the basis for mitigating 

negligence in some scenarios, see discussion supra Part IV.B, in this case Mach made no 

showing of detrimental reliance. Standing alone, General Manager Webb’s order to lock the 

cathead once he found the charger in the escapeway might have been a basis to infer a 

late-in-the-game attempt to rely on the abatement required for the October 28 citation.15

However, the text of the regulation itself suggests Mach knew or should have known the charger 

could could not be in the escapeway regardless of whether it was locked. In fact, the regulation 

itself specifically states that battery charging stations are not permitted in primary escapeways. 

See 30 C.F.R. § 75.380(f)(3)(iii). Thus, it is unclear why Respondent believes that the locking 

the cathead on the battery charger would allow the charger to be placed in the escapeway. 

Moreover, the evidence before me also suggests that Mach knew a battery charger could 

not be located in the primary escapeway. Webb admitted that when he noticed the charger in the 

escapeway and had it locked, he was trying to do “the next best thing . . . to prevent it from being 

energized until we could . . . get it either, one, moved out of there or two, get it air locked.”16 (Tr. 

93:2–11.) Further, Mach brought forth no other evidence demonstrating that Respondent relied

on MSHA’s allegedly inconsistent guidance when it stationed the battery charger in the 

escapeway. On the contrary, Webb indicated he did not know how or when the charger returned 

to the escapeway, nor did he order anyone to do so. Thus, no matter how many back of the 

envelope calculations it might make, Mach’s math does not add up: unplanned activity and 

after-the-fact efforts to do “the next best thing” do not equal reliance. 

Although the cathead was locked out when Mach moved the charger back to the 

escapeway, the cathead was unlocked in the escapeway a few days before Citation No. 6683204. 

Webb’s steps to relock the cathead notwithstanding, such actions do not preclude its future use. 

Allowing the charger to return to a place where it could be used does not meet the Mine Act’s 

high standard of care. Though Mach’s policy may not have been to use the charger in the 

14 (...continued) 

escapeway. (Tr. 88:14–23.) Thus, Mach allowed the cathead to be unlocked and available for use 

for an indeterminate length of time. If the charger was not actually used during that period, that 

inactivity appears to have been fortuitous or accidental. 

Although good fortune and happy accidents are always welcome outcomes, the Mine Act 

holds operators to a high standard of miner safety. Regardless of the charger’s actual use, and 

30 C.F.R. § 75.380(f)(3) prohibits Mach from placing battery chargers in the escapeway absent 

certain conditions. The actual use of the battery charger in this case is irrelevant to that duty. 

Thus, I need not determine whether Patton actually used the battery charger after its return to the 

escapeway.

15 Although Respondent argues it conformed with the procedures approved in abating its 

October 28 citation, Mach curiously did not introduce a copy of the October 28 citation into the 

record. Cripps and Webb both testified regarding those abatement steps, but the record is unclear 

precisely when and how Mach abated the October 28 citation. 

16 Air locking is a means by which a battery charger could be separated from the 

escapeway using a set of doors between entries. (Tr. 86:19–87:8.)

36 FMSHRC Page 2546
escapeway, charger’s location, convenience, and utility provide both an opportunity and 

incentive for miners to use the misplaced charger. I conclude, therefore, that Mach’s level of 

negligence was high. Citation No. 6683204 is hereby AFFIRMED as written. 

C. Penalty Assessment

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. The Secretary seeks a penalty of at least $4,800 for these violations. I 

have reviewed the History of Violations and Assessments Reports, which are not disputed (Sec’y 

Ex. 2; Sec’y Ex. 3; Sec’y Ex. 4.) This report included nine previous section 75.400 violations, of 

which one was S&S. In considering this history along with the other statutory factors, I also take 

special note that the section 75.380(f)(3)(iii) violation occurred just three weeks after an 

identical violation. Respondent stipulated to the gravity of Citation No. 6683204, and I have 

found Mach’s negligence to be high. I have also found Citation No. 6679603 to be properly 

designated S&S and the result of Mach’s high negligence. Additionally, nothing in the record 

suggests that the Secretary’s proposed penalty of $4,800 is inappropriate for the size of Mach’s 

business, that it would infringe on Mach’s ability to remain in business, or that Mach did not 

abate the violation in good faith. The violations were abated in good faith. (Sec’y Ex. 5; Sec’y 

Ex. 7.) 

Considering the evidence before me, I conclude a total civil penalty of $4,800.00 is 

appropriate, given the violation history, size of the mine and Mach’s ability to remain in 

business, Mach’s high negligence, the gravity of both violations, and Mach’s good faith 

abatement of the violations. Accordingly, I hereby assess a civil penalty of $4,800.00. 

VI. ORDER

WHEREFORE, it is ORDERED that Citation No. 6683204 and 6679603 are 

AFFIRMED. Within 40 days of this decision, Mach is ORDERED to pay a civil penalty of 

$4,800.00. 

/s/ Alan G. Paez

Alan G. Paez 

Administrative Law Judge 

Distribution: 

Gregory Tronson, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer 

Boulevard, Suite 216, Denver, CO 80204 

Christopher D. Pence, Esq., Hardy Pence, PLLC, P.O. Box 2548, Charleston, WV 25329 

/dyb 

36 FMSHRC Page 2547
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004 

September 30, 2014 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

BLACK BEAUTY COAL COMPANY, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2009-328 

A.C. No. 12-02010-177009 

 

Mine: Air Quality #1 Mine 

DECISION

Appearances: Emily L.B. Hays, Esq., U.S. Department of Labor, Office of the Solicitor, 

 Denver, Colorado, for Petitioner; 

 Arthur M. Wolfson, Esq., and Patrick W. Dennison, Esq., Jackson 

 Kelly PLLC, Pittsburgh, Pennsylvania, for Respondent. 

Before: Judge Paez 

 This case is before me upon the Secretary’s Petition for the Assessment of Civil Penalty 

pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 

30 U.S.C. § 815 (2006). In dispute are four section 104(d)(2) orders issued to Black Beauty Coal 

Company (“Black Beauty” or “Respondent”) over a 40-day period at its Air Quality #1 Mine 

operation (“AQ1 Mine”). The Secretary has proposed a total penalty of $163,225.00 for these 

four alleged violations. 

The parties stipulated to the following: 

 

 1. Black Beauty is an “operator” as defined in [section] 3(d) of the [Mine Act], as 

amended, 30 U.S.C. § 803(d), at the coal mines at which the Citations and Orders 

at issue in this proceeding were issued. 

 2. Operators of Black Beauty, at the coal mine at which the Citations and Orders 

were issued in this proceeding, are subject to the jurisdiction of the Mine Act. 

 3. This proceeding is subject to the jurisdiction of the Federal Mine Safety and 

Health Review Commission and its designated Administrative Law Judges 

pursuant to Sections 105 and 113 of the Mine Act. 

 4. The individual whose signature appears in Block 22 of the Citations and Orders at 

issue in this proceeding [was] acting in the official capacity and as an authorized 

representative of the Secretary of Labor when the Citations and Orders were 

issued. 

36 FMSHRC Page 2548
 5. True copies of the Citations and Orders at issue in this proceeding were served on 

Black Beauty as required by the Mine Act. 

 6. The total proposed penalties for the Citations and Orders in this proceeding will 

not affect Black Beauty’s ability to continue in business. 

 7. LAKE 2009-328 involves six [section] 104(d)(2) orders, four of which remain at 

issue for the hearing. The [section] 104(d)(1) order giving rise to these four orders 

was issued on August 15, 2007 (Order No. 6670623) and is a final [section] 

104(d) order. In the period from August 15, 2007 to November 24, 2008, 

thirty-one orders (including those at issue here) were issued pursuant to [s]ection 

104(d) of the [Mine] Act. Ten of these orders are listed as being final 104(d) 

orders. The rest are still in contest. 

 8. The R-17 Assessed Violation History Report ([Ex. G–9]) is an authentic copy and 

may be admitted as a business record of the Mine Safety and Health 

Administration. 

I. STATEMENT OF THE CASE

 

 The Secretary has filed a Petition for Assessment of Civil Penalty, and two of the six 

alleged violations in this docket were settled and disposed by a separate decision and order prior 

to the hearing. The remaining four violations, Order Nos. 6681061, 6681064, 6681073, and 

6682224, charge Black Beauty with violating the health and safety standard at 30 C.F.R. 

§ 75.400 that prohibits accumulations of combustible materials in active workings.1

 In addition, 

the Secretary determined these violations were significant and substantial (“S&S”),2

 constituted 

an unwarrantable failure3 to comply with a mandatory health and safety standard, and resulted 

from Black Beauty’s high negligence. 

 Chief Administrative Law Judge Robert J. Lesnick assigned this case to me, and I held a 

hearing in Evansville, Indiana.4 The Secretary presented testimony from MSHA Inspector Glenn 

Fishback, who issued the contested orders on October 15, October 20, October 23, and 

November 14, 2008. Currently an MSHA Roof Control Specialist, Fishback has twenty-eight 

 1 Section 75.400 provides: “Coal dust, including float coal dust deposited on rock-dusted 

surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on diesel-powered and electric equipment therein.” 30 C.F.R. 

§ 75.400.

2

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

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

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

3

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

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

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

standards.”

4

 In this decision, the hearing transcript, the Secretary’s exhibits, and Black Beauty’s 

exhibits are abbreviated as “Tr.,” “Ex. G–#,” and “Ex. R–#,” respectively.

36 FMSHRC Page 2549
years of experience in the coal mining industry, first as a general laborer, then in supervisory 

positions, including eight years with AQ1 Mine, and he has four mining certificates. (Tr. 16–20.) 

Respondent presented nine witnesses. Randall Hammond, a Compliance Supervisor with 

Black Beauty at the time of the hearing, was a Section Foreman at the AQ1 Mine at the time of 

the inspections. (Tr. 117.) Matthew Benjamin, the current Section Foreman for AQ1 Mine, was a 

Section Foreman on the midnight maintenance shift at the time. (Tr. 98.) Stephen Elliot, 

currently a Belt Examiner, was a utility worker. (Tr. 157.) Eric Carter, currently a third-shift 

Mine Manager, was an Assistant Mine Manager. (Tr. 170.) Harry Luckett was and is a hauler 

driver for the mine. (Tr. 177.) Del Culbertson, currently an Examiner, Assistant Mine Manager, 

and Operator, was an Assistant Mine Manager whose duties often included escorting MSHA 

inspectors. (Tr. 250–53.) Todd Armstrong, currently a Belt Mechanic, was an outby laborer in 

2008 and accompanied MSHA inspectors on occasion. (Tr. 308–09.) Rick Carie, a Shift 

Foreman for the AQ1 Mine in 2008, currently works with Special Projects. (Tr. 331.) Chad 

Barras is the Midwest Safety Director for Peabody Energy, which was the parent company of 

Black Beauty at the time of the inspection, and who previously worked with MSHA for one year 

as a ventilation engineer. (Tr. 345–46.) 

The Secretary and Respondent each submitted post-hearing briefs and reply briefs. 

II. ISSUES

The Secretary asserts that the four conditions before me were properly cited as violations 

of section 75.400, and that the significant and substantial (“S&S”), unwarrantable failure, and 

high negligence determinations are valid. (Sec’y Br. at 1, 10–20, 22–26, 29–34.) The Secretary 

emphasizes that the opinions of an experienced MSHA inspector are entitled to substantial 

weight. (Id. at 35–36; Sec’y Reply Br. at 1–4, 6.) 

Respondent denies that the alleged accumulations described in three of the four 

orders—Order Nos. 6681061, 6681064, and 6682224—constituted violations of section 75.400. 

(Resp’t Br. at 5–7, 24–26, 34–35.) In addition, Respondent contends that the record is 

insufficient to support the Secretary’s S&S,5

 unwarrantable failure, and high negligence 

determinations for all four orders. (Resp’t Br. at 7–20, 26–30, 35–45, 48–55.) 

5

 Black Beauty also argues that I should consider the presence of functioning carbon 

monoxide (CO) monitors, self-contained self-rescuers (SCSRs), and other fire detection, 

suppression, or management systems “in evaluating what would occur in continued mining 

operations.” (Resp’t Reply Br. at 8; see also Resp’t Br. at 51–52.) According to Respondent, 

“[t]his inquiry is relevant in analyzing the third element of the [test for S&S], which is to be 

considered assuming continued normal mining operations.” (Resp’t Reply Br. at 8–9 (citations 

omitted).) However, the Commission has repeatedly rejected operator arguments that additional 

fire safety measures prevent an S&S finding. Big Ridge, Inc., 35 FMSHRC 1525, 1529 (June 

2013); Cumberland Coal Res., LP, 33 FMSHRC 2357, 2369–70 (Oct. 2011), aff’d, Cumberland 

Coal Res. v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013); see also Buck Creek Coal, Inc. v. Fed 

(continued...) 

36 FMSHRC Page 2550
Accordingly, the following issues are before me: (1) whether the cited conditions in three 

of the four orders constitute a violation of 30 C.F.R. § 75.400; (2) whether the record supports 

the Secretary’s S&S designation in each order; (3) whether the record supports the Secretary’s 

allegations that Black Beauty’s level of negligence was high in each order; (5) whether the 

record supports the Secretary’s unwarrantable failure designation in each order; and (6) whether 

the proposed penalty for these violations is appropriate. 

For the reasons that follow: 

5 (...continued)

Mine Safety and Health Admin., 52 F.3d 133, 136 (7th Cir. 1995) (“The fact that [Respondent] 

has safety measures in place to deal with a fire does not mean that fires do no pose a serious 

safety risk to miners. Indeed, the precautions are presumably in place . . . precisely because of 

the significant dangers associated with coal mine fires.”). Accordingly, I decline to consider the 

presence or functionality of Black Beauty’s CO monitors, SCSRs, and other fire detection, 

suppression, or management systems in evaluating the Secretary’s S&S allegations.

1. Order No. 6681061 is AFFIRMED as S&S, and MODIFIED to remove the

unwarrantable failure designation and to lower the level of negligence from

“high” to “moderate”;

2. Order No. 6681064 is AFFIRMED as written;

3. Order No. 6681073 is AFFIRMED as S&S, as an unwarrantable failure, and as

the result of Black Beauty’s high negligence, and MODIFIED to reduce the

number of miners affected from ten to three;

4. Order No. 6682224 is AFFIRMED as written.

III. FINDINGS OF FACT

A. Air Quality #1 Mine – Background

The AQ1 Mine is a room-and-pillar coal mine located in Vincennes, Indiana. (Tr. 18, 20; 

Ex. G–10; Ex. R–20.) The strata below the AQ1 Mine’s coal seam is made up of fireclay, which 

is an incombustible rock. (Tr. 121, 130–31, 134, 136, 173–74, 198–99.) Respondent uses an 

intricate system of conveyor belts to transport the newly-mined coal and rock out of the mine. 

(Tr. 30–31, 35, 100.) The belt system contains several distinct parts, including the tailpiece, the 

rollers, and the feeder. (Tr. 30–37, 100.) At the end of the tailpiece is a roller, two-and-a-half to 

three feet in diameter, which turns while the belt is running. (Tr. 34–35; Ex. G–21.) The feeder 

sits directly on top of the tailpiece and is the point at which coal is loaded onto the belt. 

(Tr. 37–38, 100, 109, 122, 168.) The tailpiece is used to maintain belt alignment and is 

constructed of a metal I-beam framework. (Tr. 34–35, 39.) The belts themselves vary from three 

feet to seven feet in width. (Tr. 34.) 

36 FMSHRC Page 2551
At the time of the inspections, the mine operated on three shifts: day shift, second shift, 

and midnight shift. (Tr. 122–23.) Black Beauty performed maintenance on the midnight shift. 

(Tr. 122, 222.) During midnight maintenance shifts, a crew typically checked the tailpiece at 

least three times: once upon arrival at the unit, once during an on-shift examination, and once 

around 4:00 a.m. during the preshift examination in preparation for the day shift. (Tr. 101–102, 

236–37.) Before the day shift arrived, the maintenance crew typically dusted and cleaned the 

tailpiece and fixed any hazards. (Tr. 99–104, 123, 237.) 

The day shift typically arrived between 7:15 a.m. and 7:30 a.m. (Tr. 102.) Compliance 

Supervisor Hammond was a section foreman on the day shift in 2008, and he normally 

conducted a cursory check of the tailpiece within the first twenty minutes of the shift. (Tr. 

123–24, 147–48.) The section foreman typically conducted another six to ten checks throughout 

the shift. (Tr. 123.) If it was clear of accumulations, Hammond would date, time, and initial the 

tailpiece. (Tr. 124–25.) He testified he normally—but not always—instructed someone to clean 

up any accumulations and address any hazards immediately. (Tr. 125–26, 149.) 

Notwithstanding Black Beauty’s examinations and maintenance efforts, the AQ1 Mine 

has a history of section 75.400 violations. (Ex. G–9; Ex. G–10; Ex. G–11.) Specifically, MSHA 

records show 94 final orders involving section 75.400 between July 2007 and December 2008. 

(Ex. G–9.) In addition, Inspector Fishback testified that numerous conversations took place 

between mine management and MSHA inspectors regarding accumulations violations in the 

AQ1 Mine. (Tr. 46, 47–49, 286.) Specifically, Fishback recalled issuing an order on September 

11, 2008, and discussing belt problems with mine management. (Tr. 46, 47–49, 286.) 

As part of MSHA’s regular inspections of the AQ1 Mine, Fishback visited the mine on 

October 15, October 20, October 23, and November 24, 2008. (Ex. G–1; Ex. G–3; Ex. G–5; Ex. 

G–7.) Based on his observations, he issued Order Nos. 6681061, 6681064, 6681073, and 

6682224, respectively. (Ex. G–1; Ex. G–3; Ex. G–5; Ex. G–7.) These orders each charge Black 

Beauty with violating 30 C.F.R. § 75.400, which prohibits accumulations of combustible 

materials in active workings. (Ex. G–1; Ex. G–3; Ex. G–5; Ex. G–7.) These orders are addressed 

seriatim below. See discussion infra Part V.B–.E. 

IV. PRINCIPLES OF LAW

A. 30 C.F.R. § 75.400 – Accumulations

A violation of section 75.400 occurs “where the quantity of combustible materials is such 

that, in the judgment of the authorized representative of the Secretary, it could cause a fire or 

explosion if an ignition source were present.” Old Ben Coal Co., 2 FMSHRC 2806, 2808 (Oct. 

1980) (“Old Ben II”) (footnote omitted). This judgment is viewed through the objective standard 

of whether a “reasonably prudent person, familiar with the mining industry and the protective 

purposes of the standard, would have recognized the hazardous condition that the regulation 

seeks to prevent.” Utah Power & Light, Mining Div., 12 FMSHRC 965, 968 (May 1990), aff’d, 

951 F.2d 292 (10th Cir. 1991) (“UP&L”). In addition to being combustible, the material cited 

must be of a sufficient quantity to cause or propagate a fire or explosion. UP&L, 12 FMSHRC at 

36 FMSHRC Page 2552

B. Air Quality #1 Mine – Operations
968 (quoting Old Ben II, 2 FMSHRC at 2808). Although spills can occur quickly, accumulations 

of combustible material substantial enough to cause or propagate a fire are prohibited, even if 

recent. See Black Beauty Coal Co. v. Fed. Mine Safety & Health Review Comm’n, 703 F.3d 553, 

558–59 & n.6 (D.C. Cir. 2012) (rejecting operator argument regarding recency of spill); Prabhu 

Deshetty, 16 FMSHRC 1046, 1049 (May 1994) (rejecting a defense based on recentness of the 

spill). Finally, the Commission has observed that damp coal and coal mixed with fireclay 

remains combustible; thus, excluding such materials would defeat Congress’ intent to remove 

fuel sources from mines and prohibit potentially dangerous conditions. Black Diamond Coal 

Mining Co., 7 FMSHRC 1117, 1120–21 (Aug. 1985). 

B. Significant and Substantial Determinations

 A violation is S&S “if, based on the particular facts surrounding that violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

To establish an S&S violation, the Secretary must prove: “(1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazard—that is, a measure of danger to 

safety—contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to 

will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted);

see also Buck Creek Coal, Inc., 52 F.3d at 135–36 (affirming ALJ’s application of the Mathies

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

Mathies criteria). 

 The third Mathies element is often heavily contested. In the accumulations context, the 

third element is met where a “confluence of factors” such as the extent of the accumulation and 

presence of possible ignition sources make the hazard reasonably likely to result in injury. See 

Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997). This evaluation should be made 

assuming continued normal mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 

(Aug. 1985) (citing U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)). Materials need 

not be hot when inspected to prove friction as an ignition source, if heat will eventually result 

during continued normal mining operations. Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222 

(June 1994) (finding the lack of a hot spot immaterial where friction was present between belt 

rollers and accumulations). 

 The Commission has also provided guidance to Administrative Law Judges in applying 

the Mathies test. The Commission indicated that “an inspector’s judgment is an important 

element in an S&S determination.” Mathies, 6 FMSHRC at 5 (citing Nat’l Gypsum, 3 FMSHRC 

at 825–26); see also Buck Creek Coal, 52 F.3d at 135 (stating that ALJ did not abuse discretion 

in crediting opinion of experienced inspector). 

 

C. Unwarrantable Failure and High Negligence Determinations

 In Emery Mining, the Commission determined that an unwarrantable failure is aggravated 

conduct constituting more than ordinary negligence. 9 FMSHRC 1997, 2001 (Dec. 1987). 

36 FMSHRC Page 2553
Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional 

misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003–04; Rochester & 

Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d at 

136 (approving the Commission’s unwarrantable failure test). 

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

Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald Res. Corp., 20 

FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest 

Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 

(Feb. 1994); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243–44 (Aug. 1992); Peabody Coal 

Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 

1988). The Commission’s factors are “viewed in the context of the factual circumstances of each 

case, and some factors may not be relevant to a particular factual scenario.” Consolidation Coal 

Co., 22 FMSHRC at 353. All “relevant facts and circumstances of each case must be examined 

to determine if an actor’s conduct is aggravated” or whether mitigating circumstances exist. Id.

V. ADDITIONAL FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW

A. Combustibility and Ignition

 Based on the evidence at hearing, loose coal, coal fines, and float coal dust are each 

combustible materials. (Tr. 26–27, 91–92.) Combustion requires fuel, oxygen, and an ignition 

source. (Tr. 352.) Methane is the most common source of ignition and becomes explosive at 

concentrations of 5–15%. (Tr. 22, 80–81.) The AQ1 Mine is considered a “gassy” mine and 

liberates over a million cubic feet of methane in a 24–hour period. (Tr. 22.) During October and 

November 2008, the AQ1 Mine was on a five-day spot inspection for methane gas. (Tr. 22–23, 

69–70, 204.) A five-day spot inspection means that MSHA must inspect the mine’s ventilation 

every five days to ensure that methane is properly being ventilated out of the mine. (Tr. 22–23.) 

However, methane levels never tested above 0.3% during any of the four inspections at issue in 

this case. (Ex. G–2 at 19–20; Ex. G–4 at 10; Ex. G–6 at 12–13; Ex. G–8 at 19–21.) 

 Frictional heat is another common ignition source, particularly for belt fires. (See, e.g., 

Ex. R–25 at 20 (indicating that friction along the belt or belt drive ignited 36% of belt entry 

fires).) Friction also increases the likelihood of a fire by creating small fragments of material 

with an increased surface-to-mass ratio. (Ex. G–12 at 85.) Although dampness and incombustible 

materials decrease flammability (Tr. 27–28), frictional heat can first dry accumulations and then 

ignite the material. (Tr. 92.) 

 Both belt rollers and coal rubbing the belt structure framework are methods by which 

coal may be ground into float coal dust. (Tr. 27.) Float coal dust is coal that has been ground into 

36 FMSHRC Page 2554
extremely small pieces, with the consistency of baby powder. (Tr. 27.) Float coal dust is highly 

combustible. (Tr. 27–28.) Conversely, rock dust lowers the combustibility of float coal dust. (Tr. 

27–28.) Although float coal dust also requires suspension in order to combust on its own, a 

nearby ignition can “kick up” non-suspended float coal dust and propagate the explosion. (Tr. 

80, 353.) 

B. Order No. 6681061 – Accumulations at 5 North on October 15

1. Order No. 6681061 – Accumulations at 5 North on October 15

 Inspector Fishback visited the AQ1 Mine to conduct a quarterly inspection on October 

15, 2008. (Ex. G–1; Tr. 24.) Upon arriving at the mine, Fishback first met with mine 

management and reviewed Black Beauty’s record books. (Tr. 24–25.) Next, he traveled into the 

mine along with Belt Examiner Elliot as his escort. (Tr. 25; Ex. G–2 at 3.) The pair arrived at the 

section tailpiece of the 5 North energized belt conveyor between crosscuts 12 and 13 in the 

MMU-003 active working section at approximately 11:00 a.m. (Ex. G–2 at 10–11, 13; Ex. G–13; 

Tr. 24.) At the time the working face of the section was just seventy feet away from the tailpiece. 

(Tr. 41–42; Ex. G–2 at 20.) 

 Previous production at the AQ1 Mine had mined 5 North Section twelve crosscuts deep, 

but the section was then flooded with water. (Tr. 119–20, 179.) When Black Beauty restarted 

production in the area approximately two weeks prior to October 15, they pumped the water out 

of the panel’s crosscuts and entries. (Tr. 120, 179–80.) However, the geologic conditions of the 

mine meant there was a constant inflow of water through the floor of the mine. (Tr. 120–21, 

179–80, 245–48.) Because the floor was wet, Black Beauty tried to soak up the water in the area 

using rock dust and placed the belt tailpiece on crib blocks. (Tr. 86, 121, 246.) Notwithstanding 

these efforts, the tailpiece structure and feeder were sinking into the floor. (Tr. 122, 154, 246.) 

The tailpiece was therefore closer to the mine floor than normal. (Tr. 122.) At the time, the belt 

was just four inches above the mine floor. (Tr. 38.) 

 According to Fishback’s contemporaneous notes and testimony, he observed coal 

underneath the belt line that measured three feet in width, three feet in length, and two to eight 

inches in depth. (Tr. 32; Ex. G–2 at 11–12.) He also indicated that the belt was in contact with 

the loose coal and coal fines below the tailpiece. (Ex. G–2 at 11–12; Tr. 32.) In addition, 

Fishback observed float coal dust on the framework of the tailpiece, and he characterized the 

dust as black in color and dry. (Tr. 28, 32; Ex. G–2 at 12–13.) He measured the float coal dust at 

nine-inches wide, seven-feet long, and one-to-three inches deep. (Tr. 32; Ex. G–2 at 12–13.) 

However, the float coal dust was not in suspension. (Tr. 79, 135–36, 161, 184.) Fishback also 

testified that Elliott agreed with his observations. (Tr. 59, 84–85; see also Ex. G–2 at 13–14 

(noting Elliot’s agreement).) 

 Elliot then shut down the belt and called for section foreman Randall Hammond. 

(Ex. G–2 at 14; Ex. G–13; Tr. 84.) Hammond gathered a sample of the alleged accumulation for 

testing after he arrived; however, the material was accidentally placed on the belt and discarded. 

36 FMSHRC Page 2555
(Ex. G–2 at 15–16; Tr. 71–74, 134–35.) Based on his observations, Fishback issued Order No. 

6681061, providing: 

Combustible material in the form of loose coal, coal fines and float 

coal dust (black in color and dry) have been allowed to accumulate 

on the 5 North Energized belt conveyor tail located between 

crosscut 12 and crosscut 13 on the roadway side of the belt line 

located on the MMU-003. The combustible material under the belt 

line measured approximately 3 feet in width by 3 feet in length by 

2 to 8 inches in depth and was observed rubbing the belt for this 

total distance. On the tailpiece structure directly above these 

accumulations dry float coal dust was present which measured 

approximately 1 to 3 inches in depth by 9 inches in width for a 

length of 7 feet. The operator, Randy Hammond (Section 

Foreman) showed more than ordinary negligence by allowing the 

belt to run under this known condition until the arrival of MSHA 

to the area. This [v]iolation is an unwarrantable failure to comply 

with a mandatory standard. 

(Ex. G–1.) Fishback also designated the order as S&S. (Id.) In Fishback’s judgment, the 

materials were “obvious to the most casual observer” (Tr. 51) and had existed for two to three 

shifts. (Ex. G–2 at 18; Tr. 50.) 

 To abate the condition, Black Beauty cleaned the area from rib-to-rib and spread rock 

dust. (Ex. G–1; Ex. G–2 at 18). According to Fishback, four employees spent sixty-five minutes 

abating the cited conditions. (Ex. G–1). 

2. Additional Findings of Fact

 Black Beauty challenges three factual details underlying the Secretary’s allegations in 

this case. First, Respondent disputes the amount of time that any such conditions existed. Black 

Beauty claims that any coal at the tail piece had been deposited only recently. (Resp’t Br. at 1–3, 

7.) Respondent explicitly points to evidence that the unit was checked and found clear of 

accumulations multiple times: no accumulations were noted during Section Foreman Benjamin’s 

preshift examination at 4:52 a.m., or during Compliance Supervisor Hammond’s check at 7:41 

a.m. (Ex. R–3; Tr. 103–06, 126.) Conversely, Inspector Fishback testified that the conditions 

existed for two-to-three shifts and based his estimation on his observations and experience. In 

particular, he claimed it would take a “substantial amount of time for that much dust to develop.” 

(Tr. 52.) Yet, it is also uncontroverted that coal deposits may accumulate quickly. (See, e.g., Tr. 

262–63.) Indeed, a well-worn aphorism in mining law is that mining is a dynamic process. 

Moreover, I note that Fishback issued no citation for improper preshift examinations. This 

failure does not prove that the tailgate section was clean at the time of the preshift examination, 

but, coupled with the potential for rapid accumulation, I have doubts about Fishback’s testimony 

on this point. Given the evidence in this case, I therefore find that the conditions at issue in 

Order No. 6681061 developed after Hammond’s check at 7:41 a.m. 

36 FMSHRC Page 2556
Second, Black Beauty contends that the cited material was not combustible. (Resp’t Br. 

at 6.) Specifically, Compliance Supervisor Hammond, Belt Examiner Elliot, and hauler driver 

Luckett each claim that the material under the belt contained minimal amounts of coal and was 

mostly mud and water. (Tr. 128, 134, 160, 185.) As for the alleged float coal dust accumulation, 

Elliott, Hammond and Luckett each testified that the material was a gray mix of float coal and 

rock dust. (Tr. 135–36, 160–61, 182.) 

At first blush, contrary testimony from three operator employees would appear 

convincing. However, upon closer examination, I have serious questions regarding the testimony 

of Elliot and Luckett. In particular, Elliot’s testimony conflicts with the text of his Inspector 

Report.6

 Moreover, it appears that Luckett conflated the inspections that took place on October 

15 and 20. (Tr. 187–88, 192) As he admitted: “[T]hey kind of blend together, because they’re so 

close together and they’re in the same location . . . .” (Tr. 188.) Given the number of 

accumulations violations Black Beauty received during this period, it is understandable why 

Luckett might conflate some of the events of the days in question. Nevertheless, these 

deficiencies give me significant pause regarding the testimony each witness provided.7

In light of my doubts regarding two of the operator’s three witnesses, it appears this is a 

simple case of conflicting testimony. Here, Fishback credibly testified that he observed loose 

coal and coal fines in contact with Black Beauty’s belt. Likewise, Fishback credibly testified 

regarding the color, size and composition of the float coal dust he observed on the belt’s 

tailpiece. In particular, he testified that he saw and touched the float coal dust. (Tr. 28.) He also 

indicated that loose coal, coal fines, and float coal dust are combustible. (Tr. 26–28, 92–94.) 

Moreover, he explained his basis for identifying each type of accumulation. (Tr. 199.) Finally, 

his contemporaneous notes also support his observations. (Ex. G–2 at 12–15.) 

6

 Elliot prepared this “Inspector Report” as he traveled with Inspector Fishback on 

October 15. Notably, the “Inspector Report” states: “Arrived at #3 unit at approx 11 am. Found 

belt & tail roller of 5N running in accumulations.” (Ex. G–13.) The report also states that 

“[a]though not written up [the] unit needed [to be] cleaned better. Unit was heavily dusted.” (Id.) 

Elliot testified that his notations reflected Fishback’s observations rather than his own. 

(Tr. 162–69.) In other words, Elliot claimed a Black Beauty employee would record an 

inspector’s observations—observations with which the escort specifically disagreed—to produce 

a report of what the Inspector observed. Paradoxically, however, those same details would be 

recorded in any citation or order Inspector Fishback issued. If believed, Elliot’s self-serving 

testimony would neutralize the probative value of his “Inspection Report.” However, Elliot 

curiously did not explain why Black Beauty would adopt a seemingly redundant system. 

Accordingly, I do not credit Elliot’s testimony on this point. On the contrary, I determine that the 

“Inspector Report” supports Fishback’s testimony regarding the cited conditions. 

7

 I recognize that Fishback also admitted that the passage of time had affected his 

memory. (See, e.g., Tr. 37, 70–73, 86.) Unlike Luckett, Fishback was able to refer to his 

contemporaneous notes to refresh his memory and differentiate this case from the many 

accumulation citations and orders MSHA issued to Black Beauty during this time period. 

Accordingly, I find his testimony to be more credible than Luckett’s testimony.

36 FMSHRC Page 2557
Although Fishback had only been an inspector for a few months, I recognize that he has 

more than twenty-eight years of experience in the coal mining industry. In addition, he 

specifically worked in the AQ1 Mine before becoming an inspector, and is therefore familiar 

with the specific conditions found at this mine. His opinion is therefore entitled to significant 

weight. See Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278–79 (Dec. 1998) (relying on 

the opinion of an experienced inspector to conclude that the substantial evidence supported an 

ALJ’s S&S determination). 

I also note that neither Hammond nor Luckett were present at the time Fishback arrived 

at the tailpiece. Although both witnesses arrived thereafter, neither were able to observe the 

precise conditions Fishback encountered. Further, Fishback’s testimony about the color of the 

float coal dust is consistent with my above factual findings regarding the duration of these 

conditions. Benjamin and Hammond testified that the tailpiece was free of accumulations and 

had been rock dusted, so the recent accumulation of float coal dust predictably would be black in 

color. I also note that Fishback’s own testimony admitted that the area around the tailpiece was 

wet. (Tr. 86.) Based on the evidence before me, I therefore find that the accumulations appeared 

as Fishback described them in his written order except that they were wet. 

Third, Respondent also questions Fishback’s testimony that four miners spent 65 minutes 

abating the conditions he found. Hammond testified the material took at most fifteen minutes to 

clear. (Tr. 132.) In addition, Hammond testified that Fishback’s 65-minute estimate included 

time to lock the belt, assemble miners, collect necessary equipment, and clean the material. 

(Tr. 133.) Further, Luckett stated that shoveling the material took only a few minutes. 

(Tr. 182–86.) 

Although Fishback may have correctly estimated the amount of time from his arrival to 

ultimate abatement, I credit Hammond’s testimony that his estimate included time not spent 

removing the material. Further, four miners operating in concert would seem likely to remedy 

coal deposits of the size Fishback cited in fewer than 65 minutes. Thus, I find that the conditions 

at issue were cleared in approximately 15 minutes. 

3. Violation of 30 C.F.R. § 75.400

Order No. 6681061 alleges that Respondent violated section 75.400 by allowing 

extensive accumulations of combustible material in the form of loose coal, coal fines and float 

coal dust at 5 Main North belt tailpiece located between crosscuts 12 and 13. The Secretary 

contends that Inspector Fishback’s testimony and notes support his allegations. (Sec’y Br. at 

10–11; Sec’y Reply Br. at 2–4.) In addition, the Secretary claims that Black Beauty’s history of 

previous violations “raises serious doubts about the mine’s ability to control accumulations . . . 

including those in [Section Foreman] Benjamin’s section.” (Sec’y Br. at 11–12.) 

For its part, Respondent argues the material was a non-combustible mix of mud, water, 

and minimal coal under the belt and a mix of rock dust and float coal dust on the tailpiece. 

(Resp’t Br. at 6.) Black Beauty also argues that any combustible material was “de minimis and 

36 FMSHRC Page 2558
constituted non-violative spillage because it did not exist until shortly before the Order was 

issued.” (Id. at 6 n.6.) Finally, Black Beauty also disputes the credibility of Inspector Fishback’s 

testimony. (Id. at 7.) 

 In light of my factual findings, I determine that a reasonably prudent person, familiar 

with the mining industry and protective purposes of section 75.400, would have recognized these 

coal deposits were the type of hazardous conditions the regulation seeks to prevent. See Old Ben 

II, 2 FMSHRC at 2808 (“[T]hose masses of combustible materials which could cause or 

propagate a fire or explosion are what Congress intended to proscribe.”) In this case, Fishback 

observed loose coal and coal fines underneath the belt in question, as well as significant deposits 

of black float coal dust on the framework of the tailpiece. Despite the presence of fireclay and 

water in the area, it is uncontroverted that loose coal, coal fines, and float coal dust are 

combustible. Although these accumulations were relatively small in size, Fishback also testified 

that these materials were combustible and could ignite. (Tr. 26–28, 43–44.) These accumulations 

developed between Hammond’s 7:41 a.m. check of the tailpiece and Fishback’s arrival on the 

scene at 11:00 a.m., but the Commission has rejected the argument that “accumulations may be 

tolerated for a ‘reasonable time.’” Old Ben Coal Co., 1 FMSHRC 1954, 1957–58 (Dec. 1979) 

(“Old Ben I”). Thus, a reasonably prudent person who is familiar with the mining industry and 

protective purposes of section 75.400 would therefore have recognized that these were the types 

of materials that could propagate a fire or explosion and were impermissible accumulations. I 

therefore conclude that Black Beauty violated 30 C.F.R. 

§ 75.400. 

 

4. S&S

 

 Black Beauty’s violation of section 75.400 establishes the first element of an S&S 

violation. In addition, Inspector Fishback credibly testified that the violation at issue contributed 

to fire and mine explosion hazards. (Tr. 43–45.) I do not doubt that combustible material along 

the belt contributes to—or makes more likely—mine fire and explosion hazards. Further, 

Fishback credibly described that smoke inhalation, burns, or death were the type of injuries that 

would reasonably result from a mine fire or explosion. (Tr. 45–46.) In view of Fishback’s 

testimony, I determine that the Secretary has satisfied his burden of proof on the second and 

fourth elements of the Mathies test. 

 The parties most heavily contest whether the mine fire and explosion hazards are 

reasonably likely to result in injury. According to the Secretary, the “energized belt rubbing 

against loose coal and coal fines created an ignition source as it produced friction and, under 

continued mining operations, would cause the loose coal and coal fines to ignite.” (Sec’y 

Br. at 15.) The Secretary also contends that the “ignition of the loose coal and coal fines would, 

in turn, ignite the float coal dust above it.” (Id.) In contrast, Black Beauty contends that the 

material under the tailpiece was not in contact with any point of friction. (Resp’t Br. at 9.) In 

addition, Respondent argues that the float coal dust at issue “was not in contact with any ignition 

sources.” (Id. at 10.) Further, Black Beauty argues that an ignition of methane was unlikely to 

place the dust into suspension because methane was not present at the time of the inspection. 

36 FMSHRC Page 2559
(Id.) Finally, Respondent also suggests that the dampness of the area makes an S&S 

determination inappropriate. (Resp’t Br. at 11 n.9.) 

 Based on the evidence before me, I determine that the Secretary has satisfied his burden 

of proof on Mathies’ third element. I have credited Fishback’s description of the accumulations 

he found. Thus, the loose coal and coal fines under the tailpiece were in contact with the belt, 

which provided an ignition source as the coal dried out and heated up in the course of continued 

mining operations. Given the belt as an ignition source and the loose coal and coal fines as fuel, 

these accumulations were reasonably likely to ignite. Moreover, these ignitions were also 

reasonably likely to place the float coal dust in suspension, which could lead to a mine 

explosion. 

 Furthermore, I note that the tailpiece in question was located just seventy feet from the 

working face of the mine. Given that the AQ1 Mine is a gassy mine, methane may quickly 

accumulate on the section. I also note that MSHA’s Assessed Violations History Report for the 

AQ1 Mine shows thirty-two violations of the approved ventilation plan in the twenty-seven 

months prior to the citation at issue. (Ex. G–9 at 5–6.) Moreover, Fishback and Safety Director 

Barras each mentioned arcing as a potential source for ignition at the AQ1 Mine. (Tr. 94, 351.) 

In light of the proximity of the tailpiece to the working face and the potential for methane 

accumulation, I also determine that is reasonably likely in the course of continued mining 

operations that a methane ignition at the face would put the float coal dust in suspension and 

propagate an explosion. 

 Finally, I recognize that this area of the AQ1 Mine was very wet at the time of the 

inspection. Yet, the Commission has consistently found that wet or damp coal will dry out and 

fuel or propagate a fire or explosion. See, e.g., Consolidation Coal Co., 35 FMSHRC 2326, 

2329–30 (Aug. 2013) (citing Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120–21 

(Aug. 1985), and Mid-Continent Res., Inc., 16 FMSHRC 1226, 1230, 1232 (June 1994)). Given 

Respondent’s regular on-shift and preshift examinations, I recognize that a section foreman 

might have identified this accumulation in the next few hours. However, Hammond’s 7:41 a.m. 

check of the tailpiece was the last recorded examination. Accordingly, these extremely 

dangerous conditions created a window of several hours where a quick uptick in methane, a 

spark, or frictional heat were reasonably likely to lead to disaster. 

 In view of the above, I therefore determine that Mathies’ third element has been satisfied. 

Given my prior determinations regarding the first, second, and fourth elements, I conclude that 

this violation was appropriately designated as S&S.

5. Unwarrantable Failure and High Negligence

 The Secretary characterizes Black Beauty’s negligence as high and has designated this 

violation to be an unwarrantable failure. In support of his allegations, the Secretary points to the 

obviousness, extent, and duration of the cited conditions. (Sec’y Br. at 17.) In addition, the 

Secretary characterizes the violative condition as highly dangerous and claims that Respondent 

did not take steps to address the conditions prior to Inspector Fishback’s arrival. (Id. at 17–18.) 

36 FMSHRC Page 2560
 Conversely, Black Beauty claims the Secretary’s unwarrantable failure and high 

negligence allegations are inappropriate. (Resp’t Br. at 15.) Respondent contends that the 

condition existed only for a short time and was not extensive. (Id.) Further, Black Beauty argues 

that its past accumulations violations did not put the operator on notice that greater efforts were 

necessary to comply with section 75.400 because there is no “nexus” between the “basis for 

heightened alert” and “the facts of the alleged violation at issue.”8

 (Id. at 16.) Finally, 

Respondent avers that the condition was not highly dangerous. (Id. at 20.) 

 Looking at the Commission’s factors for unwarrantable failure, three of the 

unwarrantable factors suggest that Black Beauty’s conduct was aggravated. First, I have 

concluded that Black Beauty’s conduct was serious and dangerous enough to constitute an S&S 

violation. Second, Respondent had a sizable history of violations: Fishback specifically testified 

that Black Beauty had a “terrible reputation of belt violations” (Tr. 47), and MSHA’s records 

demonstrate a significant history of accumulations violations. (Ex. G–9; Ex. G–10; Ex. G–11.) 

These violations put Black Beauty on notice that greater efforts were necessary for compliance. 

Third, the obviousness of the condition is also an aggravating factor. Here, Fishback asserted the 

accumulations were “seen as soon as I walked up, obvious to the most casual observer” and he 

did not have to get down on his hands and knees or move anything to see the accumulations. (Tr. 

51–52.) 

 In contrast, four of the Commission’s unwarrantable factors mitigate Black Beauty’s 

conduct in this case. First, I have found that the accumulations in question had been present for 

less than a shift. See discussion supra Part V.B.2. Notwithstanding Black Beauty’s on-going 

duty to correct dangerous conditions, this relatively short duration suggests that Respondent’s 

conduct was not aggravated. Second, the cited accumulation was not extensive. Although the 

 8

 Black Beauty focuses much of its argument on explaining the “nexus” required between 

past and present violations. (See Resp’t Br. at 16–20 (citing Brody Mining, LLC, 33 FMSHRC 

1329, 1366–67 (May 2011) (ALJ), petition for review granted (June 30, 2011).) However, the 

Commission has indicated: 

[i]t was appropriate for the Judge to conclude that 

such [section 75.400] violations were sufficient to place the 

operator on notice that greater efforts were necessary for 

compliance with the standard. We do not agree that past 

violations of section 75.400 can provide such notice only if 

they are factually indistinguishable from the cited condition. 

Big Ridge, Inc., 35 FMSHRC 1525, 1530 (June 2013). Although operators may draw “a 

distinction demonstrating an anomaly,” they bear the burden of rebutting the Secretary’s 

“contention that the prior violations did, in fact, put the operator on notice.” Twentymile Coal 

Co., 36 FMSHRC 1533, 1539 (June 2014). Here, Respondent’s arguments do not demonstrate 

that the violation in question was an anomaly. Accordingly, I determine that Black Beauty’s past 

accumulations violations put the operator on notice that greater efforts were necessary to comply 

with the Secretary’s regulations. 

36 FMSHRC Page 2561
float coal dust itself was deeper than Fishback had seen in the past, the remainder of the 

accumulation spanned only a few feet. Indeed, I have found that Respondent was able to abate 

the condition in approximately 15 minutes. Third, this relatively swift abatement and the 

examinations by Section Foreman Benjamin and Compliance Supervisor Hammond suggest that 

Black Beauty efforts to keep the tailpiece free of accumulations were having at least some effect. 

See Manalapan Mining, Co., 35 FMSHRC 289, 295 (Feb. 2013) (“The evidence of the number 

of miners and time necessary to clean up the accumulations after the issuance of the citation and 

orders is relevant to [an operator’s efforts to abate the violative condition prior to a citation or 

order’s issuance], as it is to the factor of extensiveness of the violation.”) Finally, the Secretary 

has not demonstrated that Black Beauty or its agents had knowledge of the condition in question. 

In fact, the Secretary presented no evidence that any supervisor or other agent had been through 

the area since Hammond’s on-shift examination at 7:41 a.m. that morning. Thus, it is unclear that 

Respondent should have known about the violative condition.9 Cf. E. Associated Coal Corp., 32 

FMSHRC 1189, 1199–1200 (Oct. 2010) (affirming ALJ conclusion that operator had no 

knowledge of the violative condition where Secretary made no attempt to establish actual 

knowledge, and did not establish “predicate” circumstances necessary to conclude that Eastern 

reasonably should have known of the violative condition.”). 

 

 In light of the facts and circumstances, I do not believe the Secretary has met his burden 

of establishing aggravated conduct. Nevertheless, I recognize that the aggravating factors before 

me are significant. The float coal accumulations presented significant dangers to miners in the 

AQ1 Mine. As Fishback succinctly observed: “Float coal dust is what blows up coal mines.” (Tr. 

43.) Moreover, it is extremely troubling that Black Beauty received a series of accumulations 

violations but did not adequately solve the problems in this mine. These are significant 

shortcomings, and Respondent’s failure to adequately fulfill its safety duties under the Mine Act 

despite repeated warnings is the epitome of negligence. 

 Yet, after weighing these serious concerns against the mitigating circumstances of this 

case, Respondent’s failure in this case does not cross the line from ordinary negligence to 

aggravated conduct. The condition in question was dangerous, but its relatively short duration 

and limited extent circumscribes the window within which a hazard could develop. Indeed, given 

the accumulations’ obviousness and Respondent’s regular exams of the area, it appears likely 

that Black Beauty’s section foreman would have identified the accumulations and had them 

cleaned up within a few hours. Although Respondent’s procedures were ultimately inadequate to 

satisfy its duties, the Secretary has not demonstrated that Black Beauty’s missteps constitute 

intentional misconduct, indifference, reckless disregard, or a serious lack of reasonable care. Cf.

 9

 Fishback relied on Respondent’s history of past violations, finding the operator should 

have known about the accumulations on October 15 “from the previous history.” (Tr. 50.) The 

Secretary also introduced into evidence Order No. 6681046, a section 104(d)(2) order involving 

accumulations along a belt. (Ex. G–20.) However, I know little about the actual facts involved in 

Order No. 6681046. Although Black Beauty’s previous history of accumulations violations is 

relevant to an unwarrantable failure analysis, see discussion supra note 8, Fishback’s vague 

testimony and the text of Order No. 6681046 are insufficient for me to infer that Respondent had 

constructive knowledge in this case. 

36 FMSHRC Page 2562
Twentymile Coal Co., 36 FMSHRC 1533, 1534, 1538–39 (June 2014) (affirming ALJ 

determination of unwarrantable failure where accumulation existed in a large area over several 

shifts). 

For these same reasons, I conclude that the Secretary has not met his burden of showing 

Black Beauty was highly negligent. Respondent had a duty to ensure that coal did not 

accumulate in the AQ1 Mine, and it failed to fulfill that duty. I also recognize that these 

accumulations posed a significant danger to miners, and their abatement required only a small 

amount of effort. Cf., United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947). 

Nevertheless, the Secretary’s own standards call for moderate negligence where “there are 

mitigating circumstances.” 30 C.F.R. § 100.3(d) at Table X. Black Beauty’s regular 

examinations of the area in question, the relatively short time frame, and the limited extent of 

these accumulation somewhat mitigate Respondent’s negligence in this case. Accordingly, I 

conclude that Respondent’s level of negligence was moderate. 

Based on all of the above, Order No. 6681061 is MODIFIED to remove the 

unwarrantable failure designation and change the cited level of negligence to moderate. 

6. Penalty

Under section 110(i) of the Mine Act, I must consider six criteria in assessing a civil 

penalty, including the operator’s history of previous violations; the appropriateness of the 

penalty relative to the size of the operator’s business; the operator’s negligence; the penalty’s 

effect on the operator’s ability to continue in business; the violation’s gravity; and the 

demonstrated good faith of the operator in attempting to achieve rapid compliance after 

notification of a violation. 30 U.S.C. § 820(I). 

The Secretary initially sought a penalty of $41,574.00 for Order No. 6681061, and 

nothing in the record suggests the proposed penalty is inappropriate for the size of Black 

Beauty’s business. Moreover, the parties have stipulated that the proposed penalty would not 

infringe on Respondent’s ability to remain in business. I have affirmed the Secretary’s S&S 

allegation noting the seriousness of the float coal dust accumulations, but I have removed his 

unwarrantable designation and concluded that Black Beauty’s negligence to be moderate. Of the 

787 violations in Respondent’s history of violations report, 94 involved 30 C.F.R. § 75.400. (Ex. 

G–9.) Once this order was issued, nothing suggests that Respondent failed to make a good faith 

effort to achieve rapid compliance with the safety standard. Considering all of the facts and 

circumstances set forth above, I hereby assess a civil penalty of $14,000.00. 

C. Order No. 6681064 – Accumulations at 5 North on October 20

1. Order No. 6681064 – Accumulations at 5 North on October 20

Just five days later on October 20, 2008, Fishback returned to the 5 North Section 

accompanied by Mine Manager Eric Carter. (Tr. 60–61, 171.) The belt’s tailpiece still remained 

in the same location. (Tr. 61, 107–108, 171.) However, during the early morning hours of 

October 20, Section Foreman Benjamin and his midnight shift crew lifted the feeder off the 

36 FMSHRC Page 2563
tailpiece to install belt hangers, which would facilitate a future belt move. (Tr. 108–109, 114.) 

Before resetting the feeder, Benjamin’s crew attempted to stabilize the ground in the area with a 

load of gob rock. (Tr. 109.) The crew also used a “slinger duster” to apply rock dust to the area 

around the tailpiece. (Tr. 109–110, 114–15.) According to Benjamin, the area was clean and 

“snow white.” (Tr. 110.) 

 Upon inspecting the same tailpiece, Fishback again observed loose coal, coal fines, and 

float coal dust underneath and on the structure. (Ex. G–4 at 5–6; Tr. 60–62.) In Fishback’s 

judgment, these materials were obvious and excessive. (Tr. 64–65.) According to Fishback, he 

and Carter both observed contact between the loose coal and the belt. (Ex. G–4 at 5–6.) The belt 

was shut down, and at 10:05 a.m. Fishback issued Order No. 6681064, providing as follows: 

Combustible material in the form of loose coal, coal fines and float 

coal dust (Dry and black in color) have been allowed to 

accumulate on the 5 Main North energized belt conveyor tail 

located between crosscut #12 to crosscut #13 on the roadway side 

of the belt line located on the MMU-003. The combustible material 

under the beltline measured approximately 2 foot in width by 3 

[feet] in length and 1 to 2 inches in depth and was observed 

rubbing the belt for approximately 1 foot of this distance. On the 

tailpiece structure directly above these accumulations dry float 

coal dust was present which measured approximately 9 inches in 

width by 5 feet in length by 1 to 2 inches in depth. The operator, 

Randy Hammond (Section Foreman) showed more than ordinary 

negligence by allowing the belt to run under this known condition 

until the arrival of MSHA to the area. This violation is an 

unwarrantable failure to comply with a mandatory standard. 

(Ex. G–3 at 1–2.) Fishback designated the Order as S&S. (Id. at 1.) Further, Fishback 

testified that four employees worked for forty-five minutes to abate the violative condition. 

(Tr. 66, 88; Ex. G–4 at 8.) He also indicated that he saw no evidence that Black Beauty 

attempted to abate the condition prior to his arrival. (Tr. 65.) 

2. Further Findings of Fact

 Black Beauty again challenges three important aspects of Inspector Fishback’s testimony. 

First, Black Beauty claims that when Compliance Supervisor Hammond performed his check at 

9:17 a.m. the tailpiece area was free of accumulations and had been recently rock dusted. (Resp’t 

Br. at 21.) As I noted above, coal deposits may accumulate quickly. Given the evidence before 

me, I therefore find that the conditions at issue in Order No. 6681064 developed after 

Hammond’s check at 9:17 a.m. and had recently been rock dusted. 

 Second, Respondent disputes the composition of the material Fishback identified. (Resp’t 

Br. at 24–26.) Specifically, Respondent’s witnesses claimed the material under the belt consisted 

largely of mud and standing water. (Tr. 111, 141–42, 172–75; Ex. G–14 at 1; Ex. R–13.) 

Hammond and Mine Manager Carter also contended that the dust on the framework of the 

36 FMSHRC Page 2564
tailpiece was a lighter gray than five days earlier because of the recent rock dusting. (Tr. 145, 

173.) Hammond also claimed that the dust was not 1–3 inches deep. (Tr. 145.) 

 Nevertheless, the evidence in this case again convinces me that the cited conditions 

generally appeared as Fishback described them. Despite Hammond and Carter’s opinion that the 

material under the tailpiece was mostly fireclay and water, Fishback’s credible testimony 

reflected his personal observations. Further, I have accorded Fishback’s testimony significant 

weight based upon his long experience as a coal miner. Considering the evidence before me, I 

find that the cited materials were as Fishback described them. However, I also find that the coal 

deposits themselves were wet. 

 This finding is consistent with my factual determinations for Order No. 6681061. See 

discussion supra Part V.B.2. Although Black Beauty had treated the mine floor and applied rock 

dust, the tailpiece and feeder in question remained in the same location. Accumulations 

predictably developed in the same spots of the tailpiece. Those accumulations in Order No. 

6681061 developed during the three-and-a-half hour window between Black Beauty’s last check 

of the tailpiece and Fishback’s 11:05 a.m. order on October 15. Here, in contrast, Hammond 

last examined the belt at 9:17 a.m. on October 20, and Fishback issued Order No. 6681064 at 

10:05 a.m. Thus, this smaller window predictably allowed a smaller amount of coal to 

accumulate. 

 Third, Black Beauty disputes the amount of effort required to abate the condition at issue. 

(Resp’t Br. at 22, 28–29.) According to Hammond, the majority of the forty-five minutes 

recorded by Fishback consisted of informing Carter of the order, shutting off the belt, finding 

and informing Hammond, gathering shovels, and removing the guarding from the belt. (Tr. 

144–45.) Hammond testified that he and Luckett spent ten minutes shoveling soupy material 

from underneath the tail to abate condition. (Tr. 144.) Again, I credit Hammond’s testimony that 

Fishback’s estimate included time not spent removing the material, and I find that the conditions 

at issue were cleared in approximately 10 minutes. 

3. Conclusions of Law — Violation of 30 C.F.R. § 75.400, S&S, Unwarrantable 

 Failure, and High Negligence — Order No. 6681064

 The Secretary and Black Beauty each revisit the arguments they made in connection with 

Order No. 6681061 to reach the identical conclusions regarding Order No. 6681064 issued on 

October 20. Given the similarities between the conditions at issue, the parties’ redundance is 

unsurprising. Unfortunately, the rematch proves less compelling than the original. I need not 

follow the parties’ lead and mechanically rehash each argument. Instead, I focus below on 

identifying any differences between the orders and determining whether those differences impact 

my analyses. 

 Very little distinguishes the conditions Inspector Fishback identified in Order No. 

6681064 from the conditions he cited five days earlier in Order No. 6681061. As I noted, 

Respondent had installed chain hangers at the tailpiece, attempted to stabilize the ground with 

additional rock, and applied rock dust to the area on the preceding midnight shift. In addition, the 

36 FMSHRC Page 2565
materials Fishback identified on October 20 were slightly smaller in size than were present in 

Order No. 6681061 on October 15. Finally, the materials in question had been present for less 

than an hour. 

 Yet, none of these three differences palpably affect my analyses. First, a reasonably 

prudent person familiar with the mining industry and the protective purposes of section 75.400 

would have recognized that these materials could propagate a fire or explosion. Fishback 

credibly testified that the cited material was combustible and would ignite (Tr. 63, 92), and 

neither Respondent’s maintenance efforts nor the smaller size of the materials nor the somewhat 

shorter amount of time they existed renders the materials incombustible. Accordingly, I conclude 

that Black Beauty violated 30 C.F.R. § 75.400. 

 Second, those differences also do not alter my S&S analysis. Although I recognize the 

accumulations in this case were smaller in size than those present in Order No. 6681061, they 

would have continued to grow in on-going mining operations until Hammond performed a check 

of the tailpiece area in a few hours. Moreover, Black Beauty’s maintenance efforts preceding the 

accumulations in question do not affect my determination that the Secretary has demonstrated all 

four elements of the Mathies test. As with Order No. 6681061, the accumulations at issue in 

Order No. 6681064 developed after Compliance Supervisor Hammond found the tailpiece area 

clean and rock dusted at 9:17 a.m. Consequently, Black Beauty’s midnight-shift maintenance 

efforts affect neither the hazards the developing accumulation presented nor the reasonably 

likelihood of those hazards causing reasonably serious injuries. 

 Indeed, the circumstances that remained constant convince me that the Secretary has 

again met his burden of proving his S&S designation. Here, Fishback again credibly testified that 

the violative condition contributed to—or made more likely—mine fire and explosion hazards 

that were reasonably likely to cause reasonably serious injuries. (Tr. 62–63, 65.) The coal 

accumulations under the tailpiece were in contact with the belt, which presented an ignition 

source. Further, the AQ1 Mine remains a gassy mine that is susceptible to rapid methane 

buildup. Given the evidence before me, I therefore determine that the Secretary has met his 

burden of proving all four elements of Mathies, and I conclude that he properly designated Order 

No. 6681064 as S&S. 

 Third, Black Beauty’s maintenance efforts on the previous shift, the somewhat smaller 

accumulations at issue in Order No. 6681064, and the shorter duration the accumulations existed 

have little impact on my unwarrantable failure or negligence analyses. None of these factors 

counterbalance the obviousness of these accumulations or the grave danger they presented in 

continuing mining operations. 

 However, I am extremely troubled that loose coal, coal fines, and float coal dust were 

able to accumulate in the same spot and same fashion as occurred five days earlier. Indeed, the 

rapid build-up of accumulations in Order No. 6681061 placed Black Beauty on notice that 

greater efforts were necessary to comply with section 75.400. Given that accumulations had so 

recently developed at this precise spot in the mine, Respondent reasonably should have known 

about this violative condition. Instead, Black Beauty apparently continued to adhere to the same 

36 FMSHRC Page 2566
processes for checking the tailpiece it had used before Order No. 6681061 but with an “extra 

eye” on the tail. (See Resp’t Br. at 29–30 (quoting Tr. 139–40).) Unfortunately, this reaction was 

inadequate to prevent this violative condition from recurring in a location where dangerous 

amounts of coal were known to rapidly accumulate. Based on the accumulations’ obviousness 

and danger, the nearly identical order just five days earlier, and Respondent’s resulting reason to 

know of the violation, I determine that Black Beauty’s conduct constituted a serious lack of 

reasonable care. Accordingly, I conclude that Inspector Fishback appropriately designated Order 

No. 6681064 as an unwarrantable failure. For these same reasons, I conclude that Respondent 

was highly negligent. 

4. Penalty

 The Secretary originally proposed a $41,574.00 civil penalty for this violation. 

Again, nothing in the record suggests that the proposed penalty is inappropriate for the size of 

Black Beauty’s business. The parties also stipulated that the penalties would not infringe on 

Respondent’s ability to remain in business. I have found that this violation was properly 

designated as S&S, and affirmed the Secretary’s high negligence and unwarrantable failure 

allegations. Of the 787 violations in Respondent’s history of violations report, 94 involved 

30 C.F.R. § 75.400. (Ex. G–9.) I also note that the conditions underlying Order No. 6681064 

were extremely similar to the conditions cited just five days earlier in Order No. 6681061. Given 

the gravity, egregiousness, and similarity of Black Beauty’s missteps in this case, I conclude that 

a significant penalty is appropriate. Considering all of the facts and circumstances in this matter 

and the criteria of section 110(i), I hereby assess a civil penalty of $41,574.00. 

D. Order No. 6681073 – Accumulations at 4 Main North on October 23

1. Order No. 6681073 – Accumulations at 4 Main North on October 23

 Just three days later on October 23, Inspector Fishback again conducted an inspection at 

the AQ1 Mine. (Tr. 276; Ex. G–5.) Upon examining the mine’s Belt and Roadway Inspection 

Reports, Fishback noted that a “spill” at Crosscut 178 had been present for three shifts with no 

action taken. (Ex. G–6 at 18; Ex. G–16; Ex. G–17; Ex. G–18; G–19; Tr. 286–91, 295.) 

 After checking the exam books, Fishback traveled with Belt Mechanic Todd Armstrong 

to examine the belt in the 4 Main North C entry. (Tr. 310, 369.) The belt ran down the middle of 

the entryway until it reached Crosscut 178. (Ex. R–20; Tr. 320–21.) At that point, it intersected 

at a right angle with another belt—the 4 Main North A—that ran through the middle of Crosscut 

178. (Ex. R–20.) Because the 4 Main North C belt bisected the entry, the entry was split into a 

travel/roadway side and a “back” side. (Tr. 297, 320–323; Ex. R–20.) The belt was four feet 

wide and located just one foot off of the ground. (Tr. 325.) 

 Fishback and Armstrong traveled into the mine along the roadway/travel side of the 4 

Main North C entry. (Tr. 370–71.) As they approached Crosscut 178, Fishback testified that he 

observed loose coal, coal fines, and float coal dust under the belt conveyor tail. (Tr. 277–78, 

295–96.) According to Fishback, the material was black. (Ex. G–6 at 5; Tr. 277–78.) In addition, 

36 FMSHRC Page 2567
he testified that one of the belt’s bottom rollers was running in the material. (Ex. G–6 at 5; Tr. 

277–81, 297–98, 304–05.) In Fishback’s judgment, the accumulations had existed for more than 

one shift (Ex. G–6 at 6) and were obvious to the most casual observer (Tr. 292). At 9:40 a.m., 

Fishback issued Order No. 6681073, providing as follows: 

Combustible materials in the form of loose coal and coal fines, 

including float coal dust, black in color have been allowed to 

accumulate under the 4 Main North [C] energized belt conveyor 

tail located at crosscut #178. These accumulations measured 

approximately 35 feet in length by 4 feet in width and 6 inches to 1 

1⁄2 feet in depth. One of the bottom rollers was observed running in 

these accumulations for a distance of half the length of the roller. 

Due to past history of accumulations of combustible material on 

belt lines at this mine, this violation is an unwarrantable failure to 

comply with a mandatory standard. 

(Ex. G–5.) In addition, Fishback indicated that the cited condition was reasonably likely to result 

in lost workdays or restricted duty from smoke inhalation and burn injuries.10 (Ex. G–5; Tr. 279, 

281–82.) Fishback testified that the abatement required six men and 2-1⁄2 hours and that he saw 

no evidence of previous efforts to abate the condition. (Tr. 293–94.) No methane was present at 

the time the order was issued. (Tr. 298–99.) 

2. Additional Findings of Fact

Although Black Beauty admits an accumulation existed (Resp’t Br. at 47), the operator 

again disputes Inspector Fishback’s testimony on three points. First, Respondent contends that 

the admitted accumulations of loose coal were much smaller than Fishback had indicated in 

Order No. 6681073. Specifically, Belt Mechanic Armstrong claimed that Fishback issued the 

order on account of a small pile of coal that was one-foot tall and eight-inches in diameter. 

(Tr. 310–11, 320.) He also testified that the remainder of the thirty-five feet of material 

contained “sprinkles” of coal.11 (Tr. 314.) Although I believe Armstrong testified to the best of 

10 Fishback initially wrote that the cited condition would affect ten persons. (Ex. G–5.) 

However, at hearing he testified that the Order should be modified to three persons affected 

based on the miners who were likely to be present in the outby area. (Tr. 283–84, 307.) In light 

of his testimony, counsel for Black Beauty moved to modify Order No. 6681073 to reflect three 

persons affected. (Tr. 307.) The Secretary did not object, and I noted for the record that the 

number of persons affected would be modified to three. (Tr. 307.) 

11 Shift Foreman Carie also testified that members of the clean-up crew told him that 

“‘there wasn’t very much stuff here.’” (Tr. 337.) However, Carie did not arrive at 4 North Main 

C tail until the materials in that portion of the mine had already been cleaned. (Tr. 333–34, 337.) 

Given Carie’s position as a Shift Foreman, the members of a clean-up crew might have a strong 

(continued...) 

36 FMSHRC Page 2568
his recollection, Respondent’s own preshift belt examination reports for the three shifts 

preceding Fishback’s inspection identify spills at crosscut 178 that had not been cleaned. 

(Ex. G–16 at 2; Ex. G–17 at 2; Ex. G–18 at 2.) Notwithstanding Respondent’s argument that 

these spills were non-hazardous, the preshift examiners’s notations on the report suggest to me 

that the materials in question include more than mere “sprinkles” of coal. In addition, Fishback’s 

contemporaneous notes support his description of the size of the accumulation in question. 

(Ex. G–6.) Accordingly, I find that the coal accumulations in question appeared as Fishback 

described them in Order No. 6681073 and his contemporaneous notes. 

Second, Black Beauty disputes the allegation that the cited material was in contact with a 

roller on the 4 Main North C belt. (Resp’t Br. at. 45, 48–49, 54–55.) According to Fishback, he 

and Armstrong approached the tailpiece at Crosscut 178 on the roadway side of the belt line. 

(Tr. 370–71.) He testified that he then observed the accumulations running in the belt rollers on 

the back side of the belt and crossed the belt to examine and measure the accumulations. 

(Tr. 296–97, 370–71; Ex. R–20.) Fishback also credibly testified that he examined the coal pile 

while on his hands and knees, and that he observed the coal to be in contact with the belt roller. 

(Tr. 277–81, 296.) Finally, Fishback’s contemporaneous notes also indicate that Armstrong, 

Superintendent Gary Campbell, Section Foreman Emery Cain, and Safety Technician David 

Weisigner all agreed the roller was in accumulations. (Ex. G–6 at 5.) 

In contrast, Armstrong claimed that material was not in contact with the roller. (Tr. 311.) 

He agreed that Fishback pointed out the pile of coal from the roadway/travel side of the belt. 

(Tr. 310–11.) However, Armstrong claimed that he alone crossed to the back side of the belt, 

bent down on his knees, and shined a light up towards the rollers to determine whether the pile 

of coal was in contact with the roller. (Tr. 310–11, 327–29.) Finally, Armstrong initially claimed 

that Fishback made his determination regarding the pile of coal from 10–15 feet away. (Tr. 311, 

326–27.) 

Yet, on cross-examination Armstrong admitted that Fishback later joined him on the back 

side of the belt. (Tr. 328.) Thus—even according to Armstrong’s version of the 

events—Fishback had a close-up opportunity from which to measure and observe the materials. 

In light of that opportunity and Fishback’s contemporaneous inspection notes, I credit Fishback’s 

account over Armstrong’s contrary testimony. Based on the evidence before me, I therefore find 

that the pile of coal accumulation Fishback identified was in contact with a roller on the 4 Main 

North C belt. 

Third, Respondent again disputes Fishback’s claim that six miners required two and half 

hours to abate the violative condition. (Resp’t Br. at 46, 50–51, 53.) Armstrong described three 

areas that Fishback required to be cleaned before the 4 Main North C belt could be restarted: 

11 (...continued) 

incentive to minimize the seriousness of the violation to their boss. Further, Carie had no basis to 

judge the accuracy of the clean-up crew’s statements because he arrived after the crew had 

finished cleaning the area. Although hearsay evidence is admissible in Commission proceedings, 

see 29 C.F.R. § 2700.63(b), I accord no weight to this testimony.

36 FMSHRC Page 2569
(1) the actual pile of coal under the tailpiece, which Armstrong claimed was cleaned in less than 

one minute; (2) the 4 Main North C area was cleared and rock dusted from rib to rib, which 

required 30–40 minutes to clean; and (3) the area out to the 4 Main North A takeup—located 

sixty feet from the intersection with 4 Main North C belt, which was cleaned in 90 minutes.12 

(Tr. 313–16.) Although Carie was not present when clean-up began, he testified that the area 

around 4 Main North C belt was “pretty well finish[ed] up” and rock dusted when he arrived 

20–25 minutes after the belt was shut down. (Tr. 333–34.) Further, he testified that cleaning the 

area to the 4 Main North A takeup required an additional 1-1⁄2 hours because it required removal 

of guards and time-consuming mud removal. (Tr. 333–35.) Curiously, Fishback did not testify 

about the extent of the clean-up efforts he required; instead, he testified only that clean-up 

required six miners “a period of two and a half hours to remove the materials and rock dust the 

affected area.” (Tr. 293–94.) Based on Armstrong and Carie’s credible testimony on this point, I 

therefore find that the cited conditions on the were abated within thirty minutes. 

3. S&S

 Black Beauty admits that the cited material violated 30 C.F.R. § 75.400; therefore, the 

first Mathies element is met. In addition, I have found that the accumulation was in contact with 

one of the belt rollers on the 4C belt. As Fishback credibly testified, friction from the belt roller 

could lead to a mine fire. (Tr. 279–80.) Accordingly, I determine that the Secretary has met his 

burden of proof for Mathies’ second element has been satisfied because the coal accumulations 

in question contributed to a mine fire hazard. Cf. Buck Creek Coal, Inc., 52 F.3d 133 at 136 

(noting precautions are in place “because of the significant dangers associated with coal mine 

fires”); Black Diamond Coal Mining Co., 7 FMSHRC 1117 at 1120 (noting “ignitions and 

explosions are major causes of death and injury to miners”). 

 The Secretary has also met his burden of proof for the third Mathies element. The cited 

accumulations were in contact with a roller on the 4C belt, which provided a frictional ignition 

source. (Tr. 279–80.) Moreover, I have found that the accumulations of coal stretched 

approximately thirty-five feet in length, spanned four feet in width, and measured between six 

and eighteen inches in depth. See discussion supra Part V.D.2. According to Fishback, the size 

of the accumulations increased the likelihood of fire because it provided additional material to 

burn. (Tr. 280.) I also note that the belt in question was located just a foot above the mine floor. 

Further, Shift Foreman Carie claimed that the “spills” mentioned on these reports were 

nonhazardous and were something that “may need attention later.” (Tr. 340.) Given the repeated 

notations in Black Beauty’s own preshift reports and Carie’s testimony, it appears likely that 

Respondent had no plans to clean this area in the course of continuing mining operations. Thus, 

the accumulations would have continued to grow deeper—eventually contacting the belt located 

just one foot above the mine floor— and exposed the accumulations to additional points of 

frictional ignition. Finally, it is uncontroverted that three miners would be present in this outby 

area. In light of the record before me, I therefore determine that the Secretary has satisfied his 

burden of proving that the mine fire hazard was reasonably likely to result in injuries. 

 12 Notably, this area is not listed on Order No. 6681073.

36 FMSHRC Page 2570
 Finally, I determine that Fishback’s testimony regarding the smoke inhalation and burn 

injuries that are likely to occur also satisfies the Secretary’s burden of proof for Mathies’ fourth 

element. As I determined in Order Nos. 6681061 and 6681064, these injuries are reasonably 

likely to be reasonably serious. In view of these determinations and the evidence before me, I 

therefore conclude that Order No. 6681073 was properly designated as S&S. 

4. Unwarrantable Failure and High Negligence

 The evidence in this case also convinces me that Black Beauty’s conduct was both an 

unwarrantable failure to comply with section 75.400 and highly negligent. Indeed, each of the 

Commission’s factors for the analysis of unwarrantable failure suggest that Respondent’s 

conduct was aggravated in this case and constituted more than ordinary negligence. As I noted 

above, see discussion supra Parts V.B.5 and V.C.3, Black Beauty has a significant history of 

accumulations violations—including two section 104(d)(2) orders from the preceding seven days 

also involving accumulations on a belt line—that put Respondent on notice that greater efforts 

were necessary for compliance. In addition, Black Beauty’s own preshift reports demonstrate the 

operator’s knowledge that coal was accumulating along the 4C belt. Yet those same reports, 

Shift Foreman Barras’ testimony, and Inspector Fishback’s observations make clear that no steps 

had been taken to clean up the coal. (See also Resp’t Br. at 53–54 (characterizing the 

accumulating coal as non-hazardous and claiming that immediate correction was not required).) 

Likewise, Black Beauty’s reports and Inspector Fishback’s testimony also indicate that the 

accumulations were obvious and had been building over three shifts. In addition, I have found 

that the accumulations in question extended for thirty-five feet and required six miners thirty 

minutes to abate. Finally, these accumulations were sufficiently dangerous to warrant an S&S 

designation. Based on all of the above, Black Beauty’s conduct was more than ordinary 

negligence and constituted a serious lack of reasonable care. Thus, I conclude that Order No. 

6681073 was appropriately marked as an unwarrantable failure. Given the lack of mitigating 

factors, I also conclude that the Secretary has also demonstrated Black Beauty’s high level of 

negligence. 

5. Penalty

 The Secretary originally proposed a $41,574.00 civil penalty for this violation. 

Again, nothing in the record suggests that the proposed penalty is inappropriate for the size of 

Black Beauty’s business. The parties also stipulated that the penalties would not infringe on 

Respondent’s ability to remain in business. I have found that this violation was properly 

designated as S&S, and affirmed the Secretary’s high negligence and unwarrantable failure 

allegations. However, I have modified the citation to reduce the number of miners affected 

from 10 to 3. Significantly, of the 787 violations in Respondent’s history of violations report, 

94 involved 30 C.F.R. § 75.400. (Ex. G–9.) Specifically, I note that the conditions underlying 

Order No. 6681073 were similar to the conditions cited in the previous seven days in Order Nos. 

6681061 and Order Nos. 6681063. In considering all of the facts and circumstances in this matter 

and the criteria of section 110(i), I hereby assess a civil penalty of $31,000.00. 

36 FMSHRC Page 2571
E. Order No. 6682224 – Accumulations at 5 Main North on November 24

1. Order No. 6682224 – Accumulations at 5 Main North on November 24

Just one month later on November 24, 2008, Inspector Fishback conducted another 

inspection in the 5 Main North section of the AQ1 Mine—the same section where he observed 

the violative conditions described in Order Nos. 6681061 and 6681064. (Tr. 205–06, 220–21.) 

During that month, Black Beauty’s mining had progressed and the tailpiece unit was accordingly 

advanced to Crosscut 24 so that the tailpiece and feeder would remain near the working face. 

(Tr. 206–07, 220–21, 240–245.) Crosscut 24 is only 700 feet deeper into the 5 Main North 

section, but the mine floor in this area was generally dry and level. (Tr. 206–07, 220, 246–48, 

254.) 

Upon arriving at the 5 North energized conveyor belt with Assistant Mine Manager Del 

Culbertson, Fishback checked the tailpiece. (Tr. 202, 204, 254; Ex. G–8 at 2–3, 8–9.) According 

to his notes and testimony, Fishback once again observed coal underneath the tailpiece and float 

coal dust on its framework. He testified that the material was black and dry, and the entire width 

of the belt was running in accumulations. (Tr. 202–06, 209–10.) In Fishback’s judgment, the 

material had been present for several shifts. (Ex. G–8 at 13–14; Tr. 215, 222.) He also found the 

material obvious without having to bend down, although he was “pretty sure” he did bend down 

to check for friction. (Tr. 217, 221.) Fishback observed rock dust in the area but asserts it was 

not mixed with float coal dust. (Tr. 223.) At that point, Culbertson shut off the belt, and at 

10:20 a.m. Fishback issued Order No. 6682224, providing: 

Combustible material in the form of loose coal, coal fines and float 

coal dust (black in color and dry) have been allowed to accumulate 

on the 5 North energized belt conveyor tail located in the #4 entry 

between crosscut #24 and #25 on Unit #3 MMU-003. The 

combustible material under the belt tail piece measured 

approximately 2 inches to 6 inches in depth by 3 feet wide by 4 

feet in length and was observed rubbing the belt for this total 

distance. On the tailpiece structure directly above these 

accumulations dry float dust was present which measured 

approximately 1⁄2 inch to 3 inches in depth by 6 inches wide for a 

length of 7 feet. The operator, Bob Smith (section foreman) 

showed more than ordinary negligence by allowing the belt to run 

under this known condition until the arrival of MSHA to the area. 

This violation is an unwarrantable failure to comply with a 

mandatory standard. 

(Ex. G–7 at 12.) The order states that abatement required four employees and took fifty-five 

minutes. (Id.) Fishback testified that the mine offered no mitigating factors. (Tr. 216.) He also 

characterized these accumulations as “[e]xactly the same” as those at issue in Order Nos. 

6681061 and 6681064. (Tr. 210.) 

36 FMSHRC Page 2572
2. Additional Findings of Fact

In its briefs, Black Beauty admits that loose coal was present underneath the tailpiece. 

(See, e.g., Resp’t Br. at 31–32 (“Upon removing the tailguarding, Mr. Culbertson . . . found a 

small pile of coal at the tail inside the guard.”).) In addition, Respondent’s arguments also admit 

that float coal dust was intermixed in the material Inspector Fishback found on the tailpiece’s 

framework. (See, e.g., Resp’t Br. at 37 (“Mr. Culbertson disagreed with Mr. Fishback’s 

assessment [that the] float dust was hazardous because the dust was 80% incombustible, 

‘layered’ rock dust mixed with coal dust.”).) However, Respondent again disputes four important 

facts underlying the Secretary’s allegations in this case. 

First, Black Beauty disputes the length of time the loose coal was present. (Resp’t Br. at 

36–37.) Black Beauty once again points to Benjamin’s testimony that the tailpiece area was 

cleaned and dusted at the end of the midnight shift.13 (Tr. 239; Ex. R–30.) Further, Culbertson 

testified that the “skirt rubber” around the tailpiece had become detached, allowing coal to 

collect underneath the tailpiece. (Tr. 262–63, 266–67.) Finally, Respondent suggests that the 

depth of the loose coal underneath the tailpiece—here, two to six inches—suggests that the coal 

had only recently piled up. (Resp’t Br. at 32, 34, 36–38.) Although Fishback estimated that the 

loose and float coal were both present for several shifts, he provided no explanation as to why he 

reached that conclusion. As I have noted, coal can accumulate quickly. Given this dynamic 

environment, Fishback’s conclusion that the loose and float coal were both present for several 

shifts appears tenuous. Accordingly, I find that the coal deposit underneath the tailpiece 

developed at some point after the day shift at began 7:00 a.m.14

Second, Black Beauty claims that the coal pile underneath the tailpiece was not in contact 

with the belt. (Resp’t Br. at 38.) Here, Inspector Fishback observed the coal deposit and 

instructed Assistant Mine Manager Culbertson to shut down the belt. (Tr. 231, 256.) Moreover, 

13 The Secretary suggests that I should not find Benjamin’s testimony credible because 

Black Beauty has a long history of coal accumulations. (Sec’y Br. 22–23.) Although he does 

not make this clear in his brief, it appears the Secretary would like me to infer that Respondent 

did not regularly clean and dust the tailpiece from Black Beauty’s repeated accumulations. Yet, 

correlation does not necessarily imply causation. Indeed, a failure to clean and dust the belt lines 

is not necessarily the best or most natural inference of causation in this case. Fishback’s own 

testimony suggests that poor belt installation and repairs contributed to Black Beauty’s ongoing 

accumulations problem. (See Tr. 213, 221 (noting that the mine had a history of “very poor” belt 

installation and suggesting it caused accumulations).) Repeated installation or repair errors are 

also unacceptable, but they do not imply that Benjamin failed to clean or dust the tailpiece on the 

midnight shift. 

14 I note that the size of the loose coal deposit under the tailpiece in Order No. 6682224 is 

comparable to the size of similar accumulations in Order Nos. 6681061 and 6681064. See 

discussion supra Parts V.B.2 and V.C.2. My finding that the loose coal at issue in Order No. 

6682224 developed in the hours between 7:00 a.m. and 10:20 a.m. on November 24, 2008, is 

therefore consistent with those earlier findings. 

36 FMSHRC Page 2573
Fishback credibly testified that he got down on his hands and knees to examine the coal in 

contact with the belt. (Tr. 221.) Assistant Mine Manager Culberston agrees that he first shut 

down the belt, but he testified that he then joined Fishback near the accumulations in question. 

(Tr. 256–57.) At that point, Culberston claims he was able to run his pen between the pile of coal 

and the belt itself. (Tr. 257–58.) Culbertson also claims that Fishback did not physically examine 

the materials. (Tr. 258, 264.) 

 Despite Culbertson’s testimony, the record as a whole convinces me that the coal pile 

was in contact with the 5 Main North Belt when the inspection party arrived at the tailpiece. As I 

have noted, I credit Fishback’s observations based on his long experience as a coal miner. 

Specifically, Fishback explained that he physically inspected the coal accumulations in question 

on his hands and knees and measured it using a tape measure. Moreover, Fishback’s 

contemporaneous inspection notes and Culbertson’s Escort Report both indicate that the belt was 

running in coal.15 (Ex. G–8 at 10; Ex. G–15.) Culbertson also admitted that he did not 

immediately join Fishback at the coal deposit because the belt needed to be shut down. Fishback 

therefore had an opportunity to examine the materials independently, and the conditions may 

have changed after Culbertson shut down the belt. Given the evidence before me, I therefore find 

that the Secretary has met his burden of demonstrating that the coal underneath the tail piece was 

in contact with the belt. 

 Third, Respondent claims that the dust that Fishback found on the framework of the 

tailpiece was “part of a dust mixture that was incombustible and ‘layered’ with rock dust.” 

(Resp’t Br. at 41.) Specifically, Culbertson described the surrounding area as very white from a 

recent rock dusting. (Tr. 261–63.) He also recalled Fishback dragging his walking stick through 

the dust material, revealing layered float coal and rock dust. (Tr. 260.) In addition, Culbertson 

testified that roadway dust would also collect on the tailpiece because it was located near a 

ventilation regulator. (Tr. 260–61.) Nevertheless, I again credit Fishback’s testimony regarding 

the color and depth of the dust accumulations based on his long experience as a miner. 

 Finally, Respondent again disputes the clean-up time recorded in the order. (Resp’t Br. at 

41.) Culbertson claimed that he shoveled the loose coal within 5 minutes, spent another 5 or 10 

minutes washing the float coal dust mixture from the structure, and spent 20 to 25 minutes 

locking and tagging the belt and pulling the guarding. (Tr. 264–65.) In light of Culbertson’s 

testimony, the size of the coal deposits, and the similarity to the condition underlying Order Nos. 

6681061 and 6681064, I find that the cited materials required fifteen minutes to clean. 

 

 15 Culbertson’s Escort Report indicates: “5MN tail roller running in fines - terminated.” 

(Ex. G–16.) Black Beauty again claims that this Escort Report reflects Fishback’s observations 

rather than Culbertson’s. (See Resp’t Reply Br. at 7). I have previously explained that I do not 

find Respondent’s position to be credible. See discussion supra note 6. Accordingly, I determine 

that Culbertson’s Escort Report weighs in favor of finding that the 5 Main North belt was in 

contact with the coal when Fishback and Culbertson arrived at the belt tailpiece. 

36 FMSHRC Page 2574
3. Violation of 30 C.F.R. § 75.400

 Despite the presence of loose coal under the tailpiece and float coal dust on the 

framework of the tailpiece, Black Beauty contends the cited conditions do not constitute a 

violation of section 75.400. Specifically, Respondent characterizes the loose coal as “spillage” 

rather than an accumulation. (Resp’t Br. at 34.) Yet, Respondent’s argument is a red-herring. 

Combustible materials of sufficient quantity to cause or propagate a fire are prohibited, even if 

recent. Prabhu Deshetty, 16 FMSHRC at 1049; see also UP&L, 12 FMSHRC at 968 (discussing 

Congress’ intent to prevent accumulations rather than cleaning them up in a reasonable period of 

time). 

 Given my factual findings in this case, I determine that the cited conditions violated 

section 75.400. It is uncontroverted that loose coal, coal fines, and float coal dust are 

combustible. Although these accumulations were relatively small in size, Fishback also testified 

that these materials were sufficient to ignite. (Tr. 209–11.) Thus, a reasonably prudent person 

that is familiar with the mining industry and protective purposes of section 75.400 would 

therefore have recognized that these were the types of materials that could propagate a fire or 

explosion and were impermissible accumulations. I therefore conclude that Black Beauty 

violated 30 C.F.R. § 75.400. 

4. S&S

 Black Beauty’s violation satisfies the first element of the Mathies test. Further, Fishback 

credibly testified that the cited accumulations contributed to belt fire and explosion hazards. (Tr. 

211–12.) Accordingly, the Secretary has satisfied Mathies’ second element. 

 Once again, Black Beauty focuses its attention on Mathies’ third element. (Resp’t Br. at 

35–40.) Black Beauty claims that the “‘confluence of factors’ necessary to make an explosion or 

fire reasonably likely was not present at the time the Order was issued.” (Id. at 36.) Specifically, 

Respondent claims that the cited accumulations were “minimal” and had recently developed. (Id.

at 36–37.) Further, Black Beauty claims that no ignition source was present. (Id. at 38.) Finally, 

Respondent also contends that the float coal dust was not hazardous because it was 

incombustible, was not in suspension, and only 0.1% methane was present at the time of the 

citation. (Id. at 38–39.) 

 Given the similarities between Order Nos. 6681061, 6681064, and 6682224, I am not 

surprised to see Respondent revisit this dispute for a third time. Yet such persistence does not 

ultimately prove effective. Despite Black Beauty’s claims that these accumulations were 

minimal, the loose coal and float coal dust spanned several feet and had significant depth. 

Moreover, it is well known that S&S determinations are to be made in the context of continuing 

mining operations. Although I agree that these accumulations developed at some point since the 

beginning of the day shift, in the course of continued operations these combustible materials 

provided potential fuel for a mine fire or explosion. Again, the AQ1 Mine is gassy and methane 

36 FMSHRC Page 2575
could rapidly develop in the course of continued mining.16 In addition, I have found that the 

loose coal accumulations were in contact with the belt, see discussion supra Part V.E.2, which 

Fishback credibly testified would provide an ignition source. (Tr. 211.) In light of the evidence 

before me, the confluence of factors convince me that an ignition or explosion hazard was 

reasonably likely to lead to an injury-causing event. Thus, I determine that the Secretary has 

established the third element of Mathies. 

 Finally, Fishback again credibly testified that smoke inhalation and burn injuries would 

result from a mine fire or explosion. (Tr. 212.) Accordingly, I determine that Mathies’ fourth 

element has been satisfied. Based on my determinations above, I conclude that the Secretary 

properly designated Order No. 6682224 as S&S. 

5. Unwarrantable Failure and High Negligence

 Once more, the Secretary has characterized Black Beauty’s negligence as high and has 

designated this violation to be an unwarrantable failure. According to the Secretary, each of the 

seven aggravating factors support a conclusion of unwarrantable failure and high negligence. 

(Sec’y Br. at 25–26.) In contrast, Black Beauty claims that the extent, duration, notice, and 

degree of danger each suggest that its conduct was not unwarrantable. (Resp’t Br. at 40.) 

Looking at the evidence before me, the Secretary has met his burden of proof on both his 

unwarrantable failure and high negligence allegations. 

 I note the accumulations in question were comparatively small and had developed at 

some point after the day shift began. Nevertheless, I have concluded that these accumulations 

presented significant dangers to Black Beauty’s miners. As Fishback testified, the conditions at 

issue in Order No. 6682224 were nearly identical to the conditions he identified in Order Nos. 

6681061 and 6681064. These recent and nearly identical violations in the same 5 Main North 

section of the mine—not to mention Black Beauty’s significant history of accumulations 

violations—should have put Respondent on notice that greater efforts were necessary for 

compliance. Those extremely similar orders also suggest that Respondent reasonably should 

have known that accumulations would predictably pile up at the tailpiece. Perplexingly, Black 

Beauty appears to have continued to employ the same measures and procedures that had 

produced recurring and dangerous accumulations along its belt lines. Further, it appears Black 

Beauty made no efforts to clean up the loose coal and float coal dust accumulating in this area 

since the beginning of the shift. Finally, it is uncontroverted that the accumulations were 

obvious. In light of the record in this case—especially the similarity to recent tailpiece 

 16 As Black Beauty admits in its posthearing brief, the “presence of methane increases the 

likelihood of a fire or explosion when accumulations are present.” (Resp’t Br. at 39.) The 

tailpiece and the feeder are purposely located near the active working face to cut to down on 

travel time. (Tr. 206–07, 220–21, 240–245.) Although little methane was present at the time, 

S&S determinations are made considering continued mining operations. See discussion supra

Part V.B.4. 

36 FMSHRC Page 2576
accumulation violations—I determine that Respondent’s conduct constituted a serious lack of 

reasonable care. Accordingly, I conclude that Black Beauty’s conduct was unwarrantable in this 

case. Given the ease with which these accumulations were ultimately cleaned relative to the 

danger they presented, I also conclude that Black Beauty’s negligence was high. 

6. Penalty

 The Secretary originally proposed a $38,503.00 civil penalty for this violation. 

Again, nothing in the record suggests that the proposed penalty is inappropriate for the size of 

Black Beauty’s business. The parties also stipulated that the penalties would not infringe on 

Respondent’s ability to remain in business. I have found that this violation was properly 

designated as S&S, and affirmed the Secretary’s high negligence and unwarrantable failure 

allegations. Of the 787 violations in Respondent’s history of violations report, 94 involved 30 

C.F.R. § 75.400. (Ex. G–9.) I also note that the conditions underlying Order No. 6682224 were 

extremely similar to the conditions cited just five days earlier on Order Nos. 6681061 and 

6681064. In considering all of the facts and circumstances in this matter and the criteria of 

section 110(i), I hereby assess a civil penalty of $38,503.00. 

VII. ORDER

 In light of the foregoing, I hereby ORDER the following: 

 Section 104(d)(2) Order No. 6681061 is MODIFIED to a section 104(a) citation by 

removing the unwarrantable failure designation, and lowering the cited level of negligence from 

“high” to “moderate.” 

 Section 104(d)(2) Order No. 6681064 is AFFIRMED as written. 

 Section 104(d)(2) Order No. 6681073 is AFFIRMED as S&S, as an unwarrantable 

failure, and as resulting from Black Beauty’s high negligence and MODIFIED to reduce the 

number of miners affected from “10” to “3.” 

 Section 104(d)(2) Citation No. 6682224 is AFFIRMED as written. 

 Black Beauty shall PAY a civil penalty of $125,077.00 within 40 days of the date of this 

decision. 

 

 /s/ Alan G. Paez

 Alan G. Paez 

 Administrative Law Judge 

 

36 FMSHRC Page 2577
Distribution: 

Emily L. B. Hays, Esq., U.S. Department of Labor, Office of the Solicitor, Cesar E. Chavez 

Memorial Building, 1244 Speer Blvd., Suite 216, Denver, CO 80204 

Arthur M. Wolfson, Esq., and Patrick W. Dennison, Esq., Jackson Kelly PLLC, Three Gateway 

Center, Suite 1500, 401 Liberty Avenue, Pittsburgh, PA 15222 

/tw & pjv 

 

36 FMSHRC Page 2578
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 

 

September 30, 2014 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 

 v. 

CAMPBELL COUNTY HIGHWAY 

 DEPARTMENT, 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. SE 2012-198-M 

A.C. No. 40-00739-276522 

 

Mine: County Quarry 

DECISION

Appearances: Robert S. Bexley, Esq., Office of the Solicitor, U.S. Department of Labor, 

Atlanta, Georgia, for Petitioner; 

 

 Charles W. Kite, Esq., Knoxville, Tennessee, for Respondent. 

 

Before: Judge Paez 

 

This case is before me upon the Petition for the Assessment of a Civil Penalty filed by the 

Secretary of Labor (“Secretary”) pursuant to section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). In dispute are two section 104(d)(2) 

orders issued by the Mine Safety and Health Administration (“MSHA”) to the Campbell County 

Highway Department as the owner and operator of the County Quarry mine. To prevail, the 

Secretary must prove the cited violations “by a preponderance of the credible evidence.” In re: 

Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995) 

(citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom.,

Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1106–07 (D.C. Cir. 1998). This 

burden of proof requires the Secretary to demonstrate that “the existence of a fact is more 

probable than its nonexistence.” RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 

(Sept. 2000) (citations and internal quotation marks omitted), aff’d, 272 F.3d 590 (D.C. Cir. 

2001). 

I. STATEMENT OF THE CASE 

 The two alleged violations in this case were issued at the Campbell County (Tennessee) 

Highway Department’s County Quarry. Order No. 8542424 charges the Campbell County 

Highway Department (“Campbell County” or “Respondent”) with a violation of 30 C.F.R. 

36 FMSHRC Page 2579
§ 56.41021 for failing to remove in a timely manner a pool of flammable hydraulic fluid on the

cab floor of the mine’s John Deere 544G loader. Order No. 8542431 charges the mine operator 

with a violation of 30 C.F.R. § 56.110012

 for failing to clean up an accumulation of rock material 

on a walkway used to service the quarry’s rock crusher, also known as the hammer mill. The 

Secretary designated both violations as significant and substantial (“S&S”)3 and in both 

instances characterized the Campbell County Highway Department’s negligence as high. The 

Secretary further asserts that each violation was an unwarrantable failure4

 to comply with a 

mandatory health and safety standard. The Secretary proposed a penalty of $4,000.00 for each 

violation, for a total penalty of $8,000.00. 

Chief Administrative Law Judge Robert J. Lesnick assigned Docket No. SE 2012-198-M 

to me, and I held a hearing in Knoxville, Tennessee.5

 The Secretary presented testimony from 

MSHA Inspector Robert McPheeters. Campbell County presented testimony from Safety 

Director Samuel Franklin, Campbell County Highway Superintendent Dennis Potter, and 

Assistant Road Superintendent Estel Muse. The parties each filed post-hearing briefs, and 

Campbell County Highway Department filed a reply brief. 

II. ISSUES

For Order No. 8542424, the Secretary asserts that Respondent failed to fulfill its duty 

imposed by 30 C.F.R. § 56.4102 by allowing a combustible liquid to accumulate on the floor of a 

vehicle at the mine. (Sec’y Br. at 5–7.) The Secretary further claims that the dangerous nature of 

the violation, the length of time the violation existed, and Respondent’s knowledge of the 

violation provide sufficient aggravating circumstances to support the issuance of an order under 

section 104(d)(2). (Id. at 7–13.) Campbell County asserts that the Secretary did not satisfy its 

1

 Section 56.4102 provides: “[f]lammable or combustible liquid spillage or leakage shall 

be removed in a timely manner or controlled to prevent a fire hazard.” 

2

 Section 56.11001 provides: “[s]afe means of access shall be provided and maintained to 

all working places. 

3

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

§ 814(d)(1), which distinguishes in gravity violations that “could significantly and substantially

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

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

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

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

safety standards.” 

5

 In this decision, the hearing transcript, the Secretary’s exhibits, and Campbell County’s 

exhibits are abbreviated as “Tr.,” “Ex. P–#,” and “Ex. R–#,” respectively. 

 burden of persuasion to show that a combustible liquid was present. (Resp’t Br. at 4–5.) 

Alternatively, Campbell County claims that additional safety measures mitigated the gravity of 

36 FMSHRC Page 2580
the violation and the operator’s efforts to repair the violative leak mitigate the level of 

Respondent’s negligence. (Resp’t Br. at 5–7.) 

 For Order No. 8542431, the Secretary contends Respondent failed its duty under 

30 C.F.R. § 56.11001 to maintain safe access to a workplace. (Sec’y Br. at 15–17.) The Secretary 

asserts that an accumulation of rock material made access to the mine’s rock crusher unsafe. (Id.) 

He further claims that the duration of the violation’s existence and the operator’s knowledge of 

the violation were sufficient aggravating factors to support the issuance of an order under section 

104(d)(2). (Id. at 16–25.) Campbell County contends the area where the accumulation occurred 

was not a working place and, alternatively, disputes the Secretary’s allegations about the danger 

posed by the debris and the length of time the debris was present. (Resp’t Br. at 7–15.) 

 Accordingly, the following issues are before me: (1) whether the Secretary has carried his 

burden of proof that Respondent violated the Secretary’s mandatory health or safety standards 

regarding the removal of spills involving flammable or combustible liquids; (2) whether the cited 

conditions violated the Secretary’s mandatory health or safety standards regarding safe access to 

working places; (3) whether the record supports the Secretary’s assertions regarding the gravity 

of the alleged violations, including the S&S determinations; (4) whether the record supports the 

Secretary’s assertions regarding Campbell County’s negligence, including the unwarrantable 

failure determinations, in committing the alleged violations; and (5) whether the Secretary’s 

proposed penalties are appropriate. 

III. FINDINGS OF FACT 

 The Campbell County Highway Department owns and operates the County Quarry in 

Jacksboro, Tennessee. Campbell County mines and crushes stone at the County Quarry for use 

on the county’s roads. (Tr. 228:6–10.) Campbell County employs four workers at the County 

Quarry. (Tr. 162:2–10.) Among its equipment, Campbell County employs a rock crusher to grind 

larger pieces of rock into gravel. The mine also employs a John Deere 544G front-end loader to 

move and load rock. (Tr. 46:15–19.) 

On June 22, 2010, MSHA Inspector Robert McPheeters and his supervisor, Inspector 

Don Ratliff, visited the County Quarry as part of a regular biannual inspection of the Mine. 

(Tr. 33:11–14.) McPheeters had extensive experience as a mining safety inspector, working for 

thirty-three years as a state or federal inspector, including thirteen years for MSHA. 

(Tr. 24:11–28:16.) 

A. Order No. 8542424: The John Deere Loader

 Prior to his visit, McPheeters looked at past MSHA inspection reports to check for any 

history of violations at the mine. (Tr. 37:1–25.) McPheeters’ review revealed a history of 

citations and orders issued under section 104(a) and (d) of the Mine Act. (Tr. 39:10–12, 

42:11–19.) Upon arriving at the mine, McPheeters and Ratliff also examined the mine’s pre-shift 

safety inspection reports, which included notes indicating the presence of a leak on the mine’s 

John Deere front-end loader. (Tr. 57:4–6.) 

36 FMSHRC Page 2581
 Along with quarry Safety Director Samuel Franklin, inspectors McPheeters and Ratliff 

examined the mine’s John Deere 544G front-end loader. (Tr. 46:12–20.) The front-end loader 

has a single-person cab. (Tr. 47:14–23.) The cab stands seven to eight feet above the ground and 

has one entry door. (Tr. 47:6–23) The vehicle’s cab also has windows on all sides. 

(Tr. 47:22–23.) Although not required by law, the cab possessed a fire extinguisher. (Tr. 48:7.) 

 At the mine, an employee alerted McPheeters to a potential problem with the front-end 

loader, telling the inspector that a valve or hose in the machine was leaking. (Tr. 50:18–21.) 

Campbell County’s Franklin testified that one of the inspectors asked him to remove a rubber 

mat covering the floor of the vehicle’s cab before checking the interior. (Tr. 149:10–11.) Upon 

inspection of the cab floor, McPheeters found an oily sheen across the entire floor and a puddle 

of brown, oily fluid in the corner. (Tr. 48:12–49:19.) McPheeters identified the brown liquid as 

oil-based hydraulic fluid. (Tr. 48:19.) The fluid was mixed with dirt. (Tr. 51:21–22.) 

 The inspectors observed that the mine’s workplace examination records first noted the 

presence of a leak of hydraulic fluid in January 2010, five months prior to the June 22 MSHA 

inspection. (Tr. 115:14.) Yet, Campbell County’s records revealed no attempts to repair the 

hydraulic fluid leak. (Tr. 125:21–126:2.) 

 Based on his observations, Inspector McPheeters issued Order No. 8542424, alleging a 

violation of 30 C.F.R § 56.4102: 

Flammable or combustible liquid spillage or leakage was not 

removed in a timely manner or controlled to prevent a fire hazard. 

On the John Deere 544G loader, a hydraulic leak exist[ed] in the 

cab. The floor is covered with oil and employees are exposed to a 

fire or burn hazard. The mine operator has engaged in aggravated 

conduct constituting more than ordinary negligence. This violation 

is an unwarrantable failure to comply with a mandatory standard. 

(Ex. P–4 at 1.) McPheeters designated the order as an S&S violation affecting one person and 

characterized the Campbell County Highway Department’s negligence as “high” and as an 

unwarrantable failure to comply with a mandatory health or safety standard (Id.) Because of the 

mine’s history of citations and orders under section 104(d)(1) of the Mine Act, McPheeters 

issued a closure order under section 104(d)(2) for the alleged violation. 

 

B. Order No. 8542431: The Hammer Mill

 

 After examining the front-end loader, the MSHA inspectors checked the mine’s rock 

crusher, which they generally referred to as the “hammer mill.” (Tr. 96:14–15.) The hammer mill 

is a big piece of equipment used to reduce large rocks to a size suitable for use by the Campbell 

County Highway Department. (Tr. 70:14–15.) The hammer mill operates almost continually 

when the mine is open. (Tr. 178:1–10.) The machine’s design causes material to be expelled 

during the crushing process. (Tr. 172:6–8.) To prevent this expulsion of material, the hammer 

mill is equipped with chains covering the ejection points. (Tr. 168:14–25.) 

36 FMSHRC Page 2582
 A miner operates the hammer mill remotely from a stand located approximately 100 feet 

away from the crushing device. (Tr. 161:2.) However, workers must still access the area 

immediately surrounding the crusher device to perform occasional repairs and weekly 

maintenance. (Tr. 161:6–13.) To facilitate those repairs and maintenance, Campbell County 

installed an elevated walkway around the hammer mill. (Tr. 228:25–229:10.) The main portion 

of the walkway is approximately eight feet long, thirty inches wide, and stands about eight feet 

off the ground. (Tr. 71:5–14.) The walkway has guard rails around the outer edge. 

(Tr. 73:17–20.) The walkway runs around the side of the hammer mill and then reaches a small 

platform area that is level with the walkway. (Tr. 185:4–7.) A feeder runs across the small 

platform and connects to the hammer mill. (Tr. 182:23–183:3.) The feeder stands approximately 

four feet above the walkway and platform. (Tr 73:10–13.) A small catwalk branches off from the 

platform and runs to other parts of the rock crusher. (Tr. 183:21–184:17.) 

 Upon inspecting the elevated walkway, Inspector McPheeters discovered an 

accumulation of rock material six inches to a foot in depth. (Tr. 73:21–22.) The material covered 

the entire width of the elevated walkway and stretched a length of four to five feet. (Tr. 

74:7–15.) The material, which included rocks ranging from the size of gravel to the size of a fist, 

had spilled out of the hammer mill where the feeder overhangs the walkway. (Tr. 73:5–9.) 

McPheeters testified that during the inspection an employee at the mine told him the hammer 

mill was missing chains that would prevent rock from being thrown out of the mill. (Tr. 

97:12–15.) 

 When looking at the County Quarry’s workplace records, McPheeters discovered that the 

accumulated material had been noted on June 16, six days prior to the inspectors’ visit, but with 

no indication it had been cleaned up. (Tr. 79:18–21.) Franklin, the mine’s safety director, 

testified that the hammer mill would take several days to expel the quantity of rock McPheeters 

found on the walkway. (Tr. 178:2–4.) 

 Based on his observations, McPheeters issued Order No. 8542431, alleging a violation of 

30 C.F.R. § 56.11001: 

Safe means of access was not provided and maintained to all 

working places. At the primary plant the walkway adjacent to the 

hammer mill had a build up of rock material about six inches to a 

foot deep. Employees that work in this area are exposed to a trip or 

fall hazard. This condition was noted on work place exams; 

however, it was not corrected. 

(Ex. P–18 at 1.) McPheeters designated Order No. 8542431 as an S&S violation affecting one 

person and characterized Campbell County’s negligence as “high” and as an unwarrantable 

failure to comply with a mandatory health or safety standard. (Id.) 

36 FMSHRC Page 2583
IV. PRINCIPLES OF LAW 

A. 30 C.F.R. § 56.4102 – Spillage and Leakage

 Section 56.4102 requires that operators (1) remove or control (2) flammable or 

combustible liquid spillage or leakage (3) in a timely manner. 

 MSHA has defined “flammable liquid” as a “liquid that has a flashpoint below 100̊F.” 30 

C.F.R. § 56.2. The Secretary has defined “combustible liquids” to mean “liquids having a flash 

point at or above 100̊F.” Id. “Flash point” in turn is defined as “the minimum temperature at 

which sufficient vapor is released by a liquid or solid to form a flammable vapor-air mixture at 

atmospheric pressure.” Id. As one Commission Judge observed, these expansive definitions 

mean the regulation covers nearly every liquid other than water. See Lehigh Southwest Cement 

Co., 33 FMSHRC 340, 352–353 (2011) (ALJ). 

 The determination of whether an operator fails to correct a defect in a timely manner 

depends entirely on when the defect occurred and when the operator knew or should have known 

of the condition’s existence. See Lopke Quarries, Inc., 23 FMSHRC 705, 715 (July 2001) 

(affirming Judge’s ruling that the Secretary must present evidence of when a device became 

defective to show a violation of 30 C.F.R. § 56.14100(b) for failing to correct the defect “in a 

timely manner”) (footnote omitted). Where an operator has actual knowledge of a violative 

condition and nevertheless continues to use the equipment without addressing the hazard, 

Commission Judges have found violations of this standard. See, e.g., Consolidated Rebar, Inc., 

35 FMSHRC 3025, 3027–28 (Sept. 2013) (ALJ) (violation established because operator 

continued to use vehicle for several days while damaged); Northshore Mining Co., 35 FMSHRC 

1006, 1017 (Apr. 2013) (ALJ) (violation established because operator used vehicle for six 

months without replacing damaged mirrors); Sweetman Construction Co., 21 FMSHRC 101 

(Jan. 1999) (ALJ) (violation established because defective truck was in use at the time the 

inspector found the defect); Walker Stone Company, 20 FMSHRC 1225 (Oct. 1998) (ALJ) 

(violation established where the operator had been using equipment without functioning 

headlights for a long period of time due to a lack of knowledge that MSHA required them). 

B. 30 C.F.R. § 56.11001 – Safe Access

Section 56.11001 requires that operators (1) provide and maintain (2) safe means of 

access (3) to all working places. The Commission has held that section 56.11001 “comprises the 

dual requirements of providing and maintaining safe access to working places.” Watkins Eng’rs 

& Constructors, 24 FMSHRC 669, 680 (July 2002) (emphasis added) (citation omitted). The 

Commission also has concluded that the term “maintain” requires “an operator to uphold, keep 

up, continue, or preserve the safe means of access it has provided to a working place.” Lopke 

Quarries, 705 at 708. MSHA has defined a “working place” as any place in or about a mine 

where work is being performed.” 30 C.F.R. § 56.2. 

 

 The Commission has held that in determining whether a broadly worded standard that is 

intended to be applied to many factual situations, such as this one, applies to a specific situation, 

36 FMSHRC Page 2584
“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) (citing Canon Coal Co., 9 FMSHRC 667, 668 (Apr. 1987)). Applied to section 

56.11001, the standard imposes an obligation on the operator to make each means of access to a 

working place safe unless, for example, there is no reasonable possibility that a miner would use 

the route as a means of reaching a workplace. The Hanna Mining Co., 3 FMSHRC 2045, 2047 

(Sept. 1981). 

C. Significant and Substantial Violations

 A violation is S&S “if, based on the particular facts surrounding that violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

To establish an S&S violation, the Secretary must prove: “(1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazard—that is, a measure of danger to 

safety—contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to 

will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted); 

see also Buck Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135-36 (7th 

Cir. 1995) (affirming ALJ’s application of the Mathies criteria); Austin Power, Inc. v. Sec’y of 

Labor, 861 F.2d 99, 104 (5th Cir. 1988) (approving the Mathies criteria). 

 The Commission has provided guidance to Administrative Law Judges in applying the 

Mathies test. The Commission has observed that “the reference to ‘hazard’ in the second element 

is simply a recognition that the violation must be more than a mere technical violation—i.e. that 

the violation present a measure of danger.” U.S. Steel Mining Co., 3 FMSHRC 822, 827 (Apr. 

1981). The Commission also has indicated that “[t]he correct inquiry under the third element of 

Mathies is whether the hazard identified under element two is reasonably likely to cause injury.”

Black Beauty Coal Co., 34 FMSHRC 1733, 1742–43 & n.13 (Aug. 2012). Finally, the 

Commission has specified that evaluation of the reasonable likelihood of injury should be made 

assuming continued mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 

1985) (quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)). 

D. Unwarrantable Failure 

 The Commission has determined that unwarrantable failure is aggravated conduct 

constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 

(Dec. 1987). It is characterized by “indifference,” a “serious lack of reasonable care,” “reckless 

disregard,” or “intentional misconduct.” Id. at 2003–04. Whether conduct is “aggravated” in the 

context of unwarrantable failure is determined by looking at all the facts and circumstances of a 

case to see if aggravating or mitigating factors exist. The Commission has identified several such 

factors, including: (1) the length of time a violation has existed, (2) the extent of the violative 

condition, (3) whether the operator has been placed on notice that greater efforts are necessary 

for compliance, (4) the operator’s efforts in abating the violative condition, (5) whether the 

36 FMSHRC Page 2585
violation was obvious, (6) whether the violation posed a high degree of danger, and (7) the 

operator’s knowledge of the existence of the violation. See IO Coal Co., 31 FMSHRC 1356, 

1350-51 (Dec. 2009). These factors are viewed in the context of the factual circumstances of 

each case. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). All relevant facts and 

circumstances of each case must be examined to determine whether an actor’s conduct is 

aggravated or mitigating circumstances exist. Id.

V. FURTHER FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW 

A. Order No. 8542424 – The John Deere Loader 

 1. Further Findings of Fact 

 a. The Presence and Flammability of Hydraulic Fluid

Respondent claims the Secretary did not demonstrate that the material in the front-end 

loader’s cab was hydraulic fluid. (Resp’t Br. at 2, Resp’t Reply at 2.) Respondent’s argument 

lacks support in the evidence. Here, McPheeters, an MSHA inspector with thirty-three years of 

experience working at mines, identified the material on the cab floor as hydraulic fluid that had 

likely leaked from the front-end loader’s steering column. (Tr. 48:19.) At the hearing, 

McPheeters testified that an employee of the mine alerted the MSHA inspectors to the hydraulic 

fluid leak before the inspectors checked the vehicle. (Tr. 50:18–21.) Moreover, Campbell 

County’s own witness, Franklin, testified that the front-end loader had leaked oil into the cab 

intermittently for several months. (Tr. 217:2–218:4.) Franklin further testified that the mine had 

attempted to repair the leak by replacing seals in the hydraulic system. (Tr. 217:2–218:4). 

Finally, Franklin testified that he cleaned the pooled liquid from the cab floor with Oil-Dri, a 

material specifically designed for cleaning oil-based fluids. (Tr. 157:10–15.) Indeed, Campbell 

County’s witnesses failed to provide any evidence suggesting an alternative origin for the fluid 

in the vehicle’s cab, or even questioning the Secretary’s assertion that the spill was of hydraulic 

fluid. Given the evidence before me, I find that the accumulated material on the cab floor of the 

John Deere loader was hydraulic fluid. 

Respondent also argues that the Secretary has not demonstrated that the accumulated 

fluid was flammable or combustible.6

 (Resp’t Br. at 2.) At the hearing, however, McPheeters 

 6

 Relying heavily on LeBlanc’s Concrete and Mortar Sand Co., 11 FMSHRC 660 (1989) 

(ALJ), Respondent claims 30 C.F.R. § 56.4102 requires the Secretary to collect a sample of the 

accumulated liquid and submit it to rigorous laboratory testing. (Resp’t Br. at 5.) Respondent’s 

argument runs counter to the text of the regulation. MSHA has defined the terms of section 

56.4102 broadly enough to cover most liquids. See Lehigh, 33 FMSHRC at 352–53. The Judge 

in LeBlanc’s relied on the definitions of “flammable” and “combustible,” rather than the 

definitions for “flammable liquid” and “combustible liquid.” LeBlanc’s, 11 FMSHRC at 674. 

Furthermore, while some MSHA regulations require laboratory testing to prove a violative 

condition, the Commission has not extended that requirement to section 56.4102. See Old Ben 

(continued...) 

36 FMSHRC Page 2586
credibly testified from his extensive experience that hydraulic fluid is combustible. 

(Tr. 52:7–53:3.) Given his experience, I find McPheeters’ testimony persuasive. Harlan 

Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998) (relying on the opinion of an 

experienced inspector to conclude that substantial evidence supported an ALJ’s S&S 

determination). Meanwhile, Campbell County again curiously failed to present any evidence at 

hearing suggesting the fluid in the cab was not flammable. 

Based on the evidence before me, I therefore find that the accumulated liquid was 

hydraulic fluid and that it was combustible. 

b. The Duration of the Spill

Respondent also disputes the amount of time the leaked hydraulic fluid was present in the 

front-end loader’s cab. (Resp’t Br. at 5–7.) Here, Inspector McPheeters testified the hydraulic 

fluid spill was first noted in equipment examination reports in January 2010, five months prior to 

the MSHA inspection. (Tr. 59:20–23.) Although McPheeters did not specifically note any 

subsequent equipment examination reports showing the presence of hydraulic fluid, the MSHA 

investigator testified that his use of the term “since” in his notes suggested he had found other 

examination reports noting the presence of the fluid after January. (Tr. 59:20–23, 

134:18–135:23.) McPheeters also testified that Respondent did not produce any repair records 

showing him the front-end loader’s leak had been remedied. (Tr. 89:6–19.) McPheeters further 

noted the quantity of hydraulic fluid present in the cab and the presence of dirt mixed into the 

fluid suggested the leakage was present “for sometime.” (Tr. 51:15–52:6.) Accordingly, 

McPheeters inferred the material had been present since first reported in January. (Tr. 63:11–22.) 

At the hearing, Respondent presented testimony that the mine attempted to repair the 

front-end loader after the leak’s discovery in January. Assistant Superintendent Estel Muse, who 

oversaw repair of equipment at the mine during the period, claimed Campbell County had 

worked on the front-end loader three times, but he was unsure of the precise dates of the work. 

(Tr. 247:11–15.) Safety Director Franklin likewise testified the operator attempted to repair the 

leak twice prior to the June 22 inspection, but admitted neither attempt permanently solved the 

problem. (Tr. 153:8–154:2.) Superintendent Potter testified that the county purchased a set of 

seals specific for the 544G John Deere front-end loader on November 3, 2009, over seven 

months prior to McPheeters’ inspection, and that the seals were used on the machine. 

(Tr. 227:1–20.) Nevertheless, Campbell County failed to provide any record of repairs for 

the front-end loader during that period. Speaking specifically of the leak McPheeters cited on 

June 22, Franklin testified the accumulated liquid was present for at least two days prior to the 

inspection. (Tr. 215:14–25.) 

6 (...continued) 

Coal Co., 2 FMSHRC 2806 (Oct. 1980) (upholding the use of band sample method to prove 

violations of 30 C.F.R. § 75.403). More importantly, decisions by Administrative Law Judges 

are not precedential. 29 C.F.R. § 2700.69(d). Thus, I am not bound by LeBlanc’s, and I chose not 

to follow it. 

36 FMSHRC Page 2587
Based on the above testimony, I conclude the leak in the front-end loader’s hydraulic 

system existed from January until the MSHA inspection. Campbell County’s efforts to repair the 

loader were repeatedly ineffectual. I further find the specific accumulation forming the basis of 

the Secretary’s claim existed for at least two days prior to the examination. 

2. Analysis and Conclusions of Law

a. Violation of 30 C.F.R. § 56.4102

Inspector McPheeters issued Order No. 8542424 for Campbell County’s failure to clean 

up an accumulation of hydraulic fluid in the cab of the mine’s John Deere 544G front-end loader. 

(Ex. P–4.) I have already found that the accumulated liquid present in the John Deere loader’s 

cab was hydraulic fluid, which is a combustible liquid as defined by 30 C.F.R. § 56.2. I therefore 

determine that an accumulation of combustible material was present and not controlled, 

satisfying the first and second elements of a violation of § 56.4102. 

Consequently, this violation turns on whether Campbell County failed to remove the 

leakage in a timely manner. As discussed above, I have found that the defect causing the leak 

existed for five months prior to the MSHA inspection. I have also found that the accumulation of 

hydraulic fluid on June 22 existed for at least two days, during which the operator knew of the 

leaked fluid and still operated the vehicle. 

Given the evidence before me, I determine that Campbell County failed to remove the 

leakage in a timely manner. The repeated recurrence of the leak, despite numerous, inadequate 

repair efforts throughout the five-month period leading up to MSHA’s inspection, put Campbell 

County on notice that it needed to be vigilant in checking for new accumulations of hydraulic 

fluid. Furthermore, Campbell County had actual knowledge that the combustible liquid lay at the 

feet of the front-end loader’s operator for two days, yet failed to clean up the liquid. Considering 

the danger posed by having a pool of combustible liquid at the feet of a worker in a vehicle eight 

to ten feet off the ground, as well as the ease with which the material could be removed, the 

operator could be expected to remove the hydraulic fluid immediately upon noticing the 

accumulation. In fact, Franklin testified that he was able to clean the accumulation with a 

pressure washer and Oil-Dri. (Tr. 157:10–15.) Under the circumstances, two days certainly was 

not a timely response. Thus, I conclude that Respondent violated 30 C.F.R. § 56.4102. 

b. Gravity and S&S Determination

Campbell County’s violation of section 56.4102 establishes the first element of the 

Mathies test for an S&S violation. The second element of the Mathies test asks whether the 

violation contributed to a discrete safety hazard; that is, whether the violation provides a measure 

of danger to safety. Here, Inspector McPheeters credibly testified that accumulated hydraulic 

fuel contributed to the safety hazard of a fire in the cab of the front-end loader, as well as the 

hazard of slipping and falling from the vehicle. (Tr. 55:10–18.) Respondent claims that the risk 

of a fire was negligible because the vehicle’s operator did not smoke. (Resp’t Br. at 13.) 

36 FMSHRC Page 2588
However, McPheeters testified that the electrical components in the vehicle’s cab or a related 

fire in the engine of the vehicle also could light the hydraulic fluid on fire. Accordingly, I 

determine that the violation contributed to the discrete safety hazard of a fire in the vehicle cab. 

The Secretary has therefore met his burden of proof on the second element of Mathies. 

The third and fourth elements of Mathies ask whether the safety hazard is reasonably 

likely to contribute to a reasonably serious injury. The Secretary claims that injuries in this 

instance are reasonably likely to be fatal. I recognize that the opinion of an experienced inspector 

is entitled to significant weight. Harlan, 20 FMSHRC at 1278–79. Based on the quantity of 

hydraulic fluid and its location in the cab of the vehicle, Inspector McPheeters determined that 

injuries from a fire were reasonably likely to be serious. (Tr. 58:9–11.) The potential for the 

vehicle operator to slip on the fluid and fall eight feet to the ground when evacuating in an 

emergency compounded the potential for a serious injury. (Tr. 55:10–18.) 

Campbell County contends that several factors mitigate the threat of a serious injury 

posed by a fire in the vehicle’s cab. First, Respondent argues that a second point of egress 

through the cab window increases a miner’s chances of escaping from a dangerous fire. (Resp’t 

Br. at 13.) Respondent adds that the presence of a fire extinguisher also reduces the chances of a 

fire causing serious injuries. (Id.) Finally, Campbell County argues that the rubber mat on the 

floor reduces any risk of the operator slipping and falling. (Id.) 

The evidence and the law do not support Respondent’s arguments. A second exit through 

the cab window adds only a negligible degree of safety. A miner forced to scramble out the cab 

window of his vehicle during a fire faces an increased risk of falling from the vehicle. 

McPheeters already testified that the accumulation of hydraulic fluid increased the risk of a 

potentially fatal fall from the vehicle cab. (Tr. 55:16–18, Tr. 129:19–130:4.) Next, the 

Commission has consistently rejected the argument that extraneous safety measures such as the 

front-end loader’s fire extinguisher reduce the likelihood of a serious injury. See Buck Creek, 

52 F.3d at 136 (indicating that the fact a mine operator “has safety measures in place to deal with 

a fire does not mean that fires do not pose a serious safety risk to miners”). Finally, while a 

rubber mat may make the floor less slippery, McPheeters testified it would not prevent a fire, the 

primary danger involved in this case. (Tr. 130:17–131:7.) 

Given the evidence before me, I determine that the Secretary has satisfied his burden of 

proving that reasonably serious injuries were reasonably likely to occur, thus satisfying Mathies’ 

third and fourth elements. Based on my above determinations, I therefore conclude that this 

violation was appropriately designated as S&S. 

c. Negligence and Unwarrantable Failure

The Secretary designated this violation as an unwarrantable failure and characterizes 

Campbell County’s negligence as high. In support of his allegations, the Secretary points to the 

length of time Campbell County had knowledge of the leak’s existence. The Secretary further 

emphasizes that Campbell County provided no evidence of mitigating circumstances during the 

inspection or in the following closeout conference. (Sec’y Br. at 10–13.) 

36 FMSHRC Page 2589
 Looking to the aggravating factors in the unwarrantable failure determination, five of the 

seven factors favor the Secretary’s unwarrantable failure allegation. First, the violative 

conditions lasted for a long time. Respondent’s own witness testified that the hydraulic fluid 

accumulation was present in the cab for at least two working days prior to the inspection, during 

which time the front-end loader was in regular use. When a hazard is found to exist, it must be 

addressed. See Buck Creek, 52 F.3d at 133 (finding unwarrantable failure where cited 

accumulation hazard must have been present at least since the previous shift). Considering the 

ease with which the fluid could be removed, allowing the combustible material to persist for two 

days exhibited a lack of care. Furthermore, the front-end loader had a defect in the hydraulic 

system of its steering column for approximately five months prior to the inspection on June 22, 

2010. Over that period, Campbell County’s safety director noted accumulations of hydraulic 

fluid in the loader’s cab at least five times. Second, Campbell County had actual knowledge of 

the accumulation of hydraulic fluid in the front-end loader’s cab. Third, Campbell County’s 

actual knowledge of the violative conditions on June 22 and its repeated failure to repair the leak 

over the previous five months put Respondent on notice that greater efforts were necessary to 

come into compliance with the regulation. The Commission has indicated that a mine operator’s 

own safety reports can serve to put the operator on notice that its existing abatement efforts are 

insufficient. See Peabody Coal Co., 14 FMSHRC 1258, 1262 (1992) (holding that a mine’s 

preshift examination books were “relevant in demonstrating that [the operator] had prior notice 

that a problem with coal and coal dust accumulations existed in the cited area, and that greater 

efforts were necessary to assure compliance. . . .”). Fourth, the extent of the violative condition 

was significant. The leaked fluid had formed a six-inch puddle at the feet of the vehicle’s 

operator and was smeared across the cab floor. As such, the hazard posed a high degree of 

danger to the vehicle operator, which applies to the fifth factor. As I have already held, the 

violation was S&S and reasonably likely to cause a fatal injury. 

 In its defense, Respondent first contends that the presence of a rubber mat on the cab 

floor obscured the leakage. But the repeated incidences of the leaked hydraulic fluid in the 

months leading up to the MSHA inspection put Campbell County on notice that it should be 

extra vigilant in examinations of the front-end loader. Just as an apartment owner who covers his 

leaking pipes with a rug gets no reprieve when the apartment below floods, Campbell County 

merits no sympathy for having a mat covering the loader’s floor. 

 Finally, Respondent claims that its efforts to fix the leak by replacing seals on the 

hydraulic lines should weigh against the Secretary’s allegations. Campbell County’s good 

intentions garner it minimal credit. As the Commission has observed: “Good intentions [] and 

good faith are not the same. Good faith requires vigilance about one’s responsibilities, 

commitment to finding the resources to get the job done, and accountability for failure.” 

Consolidation Coal Co., 22 FMSHRC 328, 332 (2000). Perhaps if this were the first or even the 

second time that the hydraulic fluid leak had arisen, I would credit Respondent’s abatement 

efforts. But the condition was noted no less than five times. Campbell County’s abatement 

efforts amount to treating a bullet wound with a Band-Aid; at some point, the efforts must 

become inadequate to any reasonable observer. 

36 FMSHRC Page 2590
 In light of Campbell County’s failure to address the leakage of combustible material in 

the cab of the front loader, I conclude that the Secretary has met his burden of proving 

unwarrantable failure. 

 Similarly, I conclude that the Secretary has demonstrated Campbell County’s level of 

negligence to be high. See 30 C.F.R. § 100.3(d) at Table X (suggesting “high negligence” where 

the “operator knew or should have known of the violative condition or practice, and there are no 

mitigating circumstances.”) Here, Respondent knew of the hydraulic fluid leak yet dangerously 

allowed violative conditions to remain in the cab. For at least two days, the miner operating the 

loader faced potentially serious injuries from a known condition that Respondent failed to 

address. Campbell County’s efforts to address the leakage repeatedly proved inadequate to fix 

the problem, and thus do not mitigate Respondent’s negligence. 

 d. Penalty

 The Secretary proposed a $4,000.00 civil penalty for this violation. I have found that this 

order was properly designated S&S. I also have found Campbell County’s negligence to be 

“high” and its actions to amount to an unwarrantable failure. Under section 110(i) of the Mine 

Act, I must consider six criteria in assessing a civil penalty: (1) the operator’s history of previous 

violations; (2) the appropriateness of the penalty relative to the size of the operator’s business; 

(3) the operator’s negligence; (4) the penalty’s effect on the operator’s ability to continue in 

business; (5) the violation’s gravity; and (6) the demonstrated good faith of the operator in 

attempting to achieve rapid compliance after notification of a violation. 30 U.S.C. § 820(i). 

 In the two years prior to the MSHA inspectors’ visit on June 22, 2010, Campbell County 

received approximately fifty citations or orders for violations of mandatory safety and health 

standards. (Ex. P-1.) Considering that the County Quarry employs a modest four miners on site, 

such a high number of violations is substantial. Nothing in the record suggests that the penalty 

would impinge on Campbell County’s ability to remain in business. Moreover, Campbell County 

was highly negligent in allowing the hydraulic fluid accumulation to persist, and the violation 

exposed miners to a reasonable risk of fatal injuries. Nevertheless, I acknowledge the small size 

of Campbell County’s mining operation and the operator’s rapid efforts to repair the front-end 

loader after the June 22 inspection. 

 The Mine Act sets a minimum penalty of $4,000.00 for an order issued under section 

104(d)(2). 30 U.S.C. § 820(a)(3)(B); see Stansley Mineral Resources, Inc., 35 FMSHRC 1177 

(May 2013) (holding that Administrative Law Judge cannot reduce penalty below statutory 

minimum set under 30 U.S.C. § 820(a)(3)(A) for analogous section 104(d)(1) violation). 

 Considering all of the facts and circumstances of this matter, I do not see that the 

violation deserves a penalty beyond the statutory minimum. Accordingly, I affirm the 

Secretary’s proposed penalty and assess the statutory minimum penalty of $4,000.00. 

36 FMSHRC Page 2591
B. Order No. 8542431: The Hammer Mill

1. Further Findings of Fact

 a. Whether Work Took Place on the Elevated Walkway

 Campbell County disputes at length the Secretary’s allegation that the walkway upon 

which debris had accumulated was a workplace or the means of access to a workplace for the 

purposes of section 56.11001. (Resp’t Br. at 7–10, Resp’t Reply at 2–5.) Campbell County 

contends the only work performed on the elevated walkway is “clearing the catwalk of build-up, 

which miners are required to do, per quarry rules, as they make their way to the de-activated 

hammer mill to perform maintenance and repairs.” (Resp’t Br. at 9.) 

 

 The evidence does not support Respondent’s position that work did not take place on the 

elevated walkway. In fact, Safety Director Franklin, testified that workers accessed the walkway 

at least once a week to grease the machinery. (Tr. 161:9–11.) Indeed, Superintendent Potter 

testified that the entire reason for installing the elevated walkway was to provide a safer means 

of performing maintenance work on the hammer mill. (Tr. 229:1–10.) In addition to this regular 

maintenance, miners accessed the walkway on a daily basis to perform necessary equipment 

safety checks. (Tr. 196:9–11.) Workers also occasionally accessed the catwalk branching off of 

the main walkway section. (Tr. 188:16–19.) Inspector McPheeters testified the walkway was a 

work area because mine employees accessed it to perform regular maintenance on the hammer 

mill. (Tr. 143:8–10.) Indeed, the testimony of McPheeters, Franklin, and Potter is 

uncontroverted. 

 All three witnesses agree that work is performed on the platform where the rock material 

had accumulated. Based on the evidence before me, I find that work did take placed on the 

elevated walkway on a daily basis. 

b. Whether the Rock Material Covered Accessible Parts of the Walkway

 Campbell County also asserts that the area containing the accumulation of material 

cannot constitute a working place or a means of access under the regulation because the 

accumulation was confined to the small area underneath the overhanging feeder. (Resp’t Br. 

at 9.) Respondent argues that the low clearance of the feeder makes traversing the area difficult, 

and thus not a means of access. (Id.) 

 Once again, the evidence does not support Respondent’s argument. McPheeters testified 

that the rock pile covered nearly four feet of the elevated walkway, leaving no way to navigate 

past the rubble without traversing it. (Tr. 82:1–4.) In addition, the Secretary introduced into 

evidence photographs showing the accumulated rocks spreading to the edge of the walkway and 

completely blocking access to the catwalk. (Ex. P–5.) In the photograph, the debris spread well 

beyond the shadow of the feeder. (Id.) 

36 FMSHRC Page 2592
Based on this evidence, I find that the accumulation of rubble extended to an accessible 

area of the walkway. 

c. The Duration of the Rock Spill’s Existence

Next, Respondent challenges the Secretary’s assertion that the ejected material had been 

present on the walkway for approximately a week at the time of the inspection. (Resp’t Reply Br. 

at 4.) At the hearing, Inspector McPheeters said the accumulation of debris along the walkway 

was noted on June 16, 2010, six days prior to the MSHA inspection. (Tr. 79:16–21.) He also 

speculated that the hammer mill would have to run for about a week to eject the amount of rock 

found at the site. (Tr. 75:19–76:6.) 

In contrast, Superintendent Potter testified that the hammer mill would eject the amount 

of material present at the time of the inspection in merely two days. (Tr. 178:2–5.) Respondent 

emphasizes that McPheeters did not find any notes identifying the accumulated rock in the 

mine’s workplace examination reports subsequent to the initial June 16 notice. (Resp’t Reply Br. 

at 4; Tr. 81:13–22.) Notably, however, Respondent presented no specific testimony that anyone 

had cleaned the walkway in the time between the June 16 report and the inspection on June 22. 

Respondent urges me to make the negative inference that because McPheeters did not note any 

report of the debris accumulation subsequent to that of June 16, it therefore follows that 

Campbell County cleared the violation. The evidence does not support such a conclusion. 

I find that the inspector’s testimony is credible in that a regularly functioning hammer 

mill could eject the amount of collected material in one week. Because Potter had greater 

specific knowledge of the County Quarry’s hammer mill, I also find credible his testimony that 

the hammer mill was functioning more poorly than McPheeters estimated. Furthermore, it is 

uncontroverted that the design flaw allowing a mass of material to eject onto the elevated 

walkway had been present for longer than a few days. (Tr. 170:22–172:11.) 

Based on the evidence before me, I find that the rock spill had lasted at least two days. 

Indeed, the defect in the hammer mill causing the material to eject onto the elevated walkway 

likely existed since the hammer mill’s installation. 

2. Analysis and Conclusions of Law

a. Violation of Section 56.11001

Inspector McPheeters issued Order No. 8542431 for Campbell County’s failure to clean 

an accumulation of rock debris off the elevated walkway around the mine’s hammer mill. (Ex. 

P–5.) To demonstrate a violation of 30 C.F.R. § 56.11001, the Secretary must prove by the 

preponderance of the evidence that the operator (1) failed to provide or maintain (2) safe means 

of access (3) to a working places. 

36 FMSHRC Page 2593
 I have already determined that work regularly took place on the elevated walkway and 

that the expelled material covered the walkway where workers could walk. For the 

debris-covered section of the walkway to constitute means of access to a working area under 

section 56.11001, therefore, I need only find there was a reasonable possibility that a miner 

would access that area. Hanna Mining, 3 FMSHRC at 2047. 

 Here, the rubble was directly adjacent to access points to grease the hammer mill. 

Furthermore, a worker would have to traverse the material to reach the catwalk for equipment 

examinations. Thus I determine it is reasonable to believe a miner would have reason to walk 

across the walkway covered in debris to perform work.7

 Based on the evidence before me, I 

conclude that the walkway around the hammer mill was a working area. The Secretary has 

therefore satisfied the second and third elements necessary to show a violation of the regulation. 

 As there is no question that Campbell County provided safe access to the hammer mill by 

constructing the walkway,8 the case turns on whether Campbell County maintained the walkway 

in a reasonably prudent manner. 

 At the hearing, Inspector McPheeters testified that accumulation of material presented a 

distinct trip-and-fall hazard to miners working on the walkway, and that no amount of ejected 

material would be safe. (Tr. 78:10–11, 77:4–8.) He also explained that the reasonably prudent 

course of action for the mine would be to repair the hammer mill to prevent the escape of 

material onto the elevated walkway. (Tr. 77:15–19.) In contrast, Campbell County claims that 

the ejection of material is a natural function of the hammer mill and that the Secretary’s demands 

would require the mine to shut down the hammer mill several times per day to clean the 

accumulated debris. (Resp’t Br. at 14; Tr. 178:5–9.) 

 7

 Rather than attempting to show there was no reasonable possibility of miners crossing 

the debris pile, Campbell County contends its use of signs blocking the entrance to the elevated 

walkway while the hammer mill was in operation precludes the walkway from being considered 

a working area. (Resp’t Br. at 8–9.) Respondent’s argument, which is devoid of any citation to 

law, essentially claims that only areas in which work is currently taking place are subject to the 

Secretary’s regulations. Such an interpretation effectively would require inspectors to observe 

work in progress in the area before MSHA could find a violation. Thus, an operator could escape 

penalty by shutting down operations upon the inspector’s arrival. The Commission has 

consistently rejected this argument. See Nacco Mining Co., 9 FMSHRC 1541, 1545–51 (Sept. 

1987).

8

 Respondent appears to contend that it met its duty under section 51.11001 simply by 

building the elevated walkway. (Resp’t Br. at 9.) Respondent argues that upholding Order No. 

8542431 would tacitly deter mine operators from providing such safety measures. (Id.) This 

contention is inapposite. The question of whether providing maintenance on the hammer mill 

from ladder-top would constitute safe access is not relevant to the question of whether Campbell 

County maintained the walkway in a reasonably prudent manner. Simply stating that its conduct 

could have been worse is not evidence that the steps Campbell County took fulfilled the high 

standard of safety required under the Mine Act and the Secretary’s mandatory health and safety 

regulations. 

36 FMSHRC Page 2594
 Respondent’s argument again is inapposite. By their nature, safety regulations may 

impede mining operations to ensure that workers are safe. In passing the Mine Act, Congress 

prioritized worker safety over mine output. In allowing the rock debris to accumulate around the 

hammer mill for days at a time, Campbell County prioritized output above the safety of its 

workers. At the very least, reasonable prudence would require the operator to clean up the debris 

on a daily basis to protect miners performing the daily workplace inspections. It is unclear from 

the record how daily cleaning would require the operator to alter the hammer mill’s operating 

schedule. By Superintendent Potter’s own admission, the ejected rock took at least two days to 

accumulate. Thus, Campbell County did not even reach the low bar of daily cleaning. I find 

McPheeters’s testimony credible, and I determine that a mine’s reasonable response to the 

continual ejection of material would be to modify the hammer mill to prevent the debris from 

spilling out. Campbell County eventually did exactly this, but only when faced with a work 

closure order from MSHA. (Tr. 169:2–13.) 

 Consequently, I determine that the Secretary has satisfied all three elements to show a 

violation of section 56.11001. The area around the hammer mill was a working place as defined 

in the regulation, and the elevated walkway was a means of access to that working place. 

Campbell County therefore had a duty to maintain the walkway in a reasonably safe manner. 

Campbell County failed in this duty by allowing the accumulation of rock material that created a 

risk of tripping and falling. 

 b. Gravity and S&S Determination 

 Campbell County’s violation of section 56.11001 establishes the first element of the 

Mathies test for an S&S violation. Second, I must assess whether the violation contributed to a 

discrete safety hazard. Inspector McPheeters credibly testified that the debris on the walkway 

threatened to trip a miner traversing the area. (Tr. 78:10–11.) McPheeters judged that the 

material, which included fist-sized rocks, was six to twelve inches high. (Tr. 73:21–22.) I find 

his testimony credible, and determine that the loose rubble in the middle of a walkway presented 

a discrete risk of causing a worker to fall and suffer injury. 

 Next, I must determine whether the safety hazard is reasonably likely to contribute to an 

injury. In support of its assertion that the rubble pile would reasonably likely result in injury, the 

Secretary points to the size of the rock pile and the regularity with which miners accessed the 

walkway to perform maintenance and daily workplace examinations. (Sec’y Br. at 19.) Campbell 

County, on the other hand, emphasizes the low frequency with which miners access the hammer 

mill and the mine’s efforts to limit access to the mill by chaining off walkway entrances while 

the mill is operational. (Resp’t Br. at 13–14.) Campbell County also claims that the overhanging 

feeder belt forces miners in the area to move slowly, further reducing the risk of an injury 

occurring. Again, the evidence does not support Respondent’s argument. The debris pile covered 

the entire width of the walkway in parts. A miner performing workplace evaluations would be 

forced to traverse the pile of rocks on a daily basis. I determine that a miner traversing the rock 

accumulation regularly could reasonably be expected to trip and fall, resulting in injury. 

36 FMSHRC Page 2595
 Finally, I must determine whether the injury caused would likely be serious. The 

Secretary claims the injuries in this instance are reasonably likely to be permanently disabling. 

(Sec’y Br. at 19.) McPheeters testified that the resulting fall from tripping on the walkway could 

result in a damaged back, broken bones, torn tendons, or a head injury. Respondent contends 

that, because a railing enclosed the walkway and because the overhanging feeder prevented 

workers from moving quickly through the area, any injuries resulting from a fall likely would be 

minor. In addition, Respondent suggests that a trip and fall hazard is insufficient to support a 

designation of S&S without the presence of aggravating circumstances.9

 (Resp’t Br. at 14.) 

 Looking at the evidence, I am convinced that the injury likely to result from a fall on the 

walkway would not be permanently disabling. Given the presence of the railing and the fact that 

miners did not access the walkway while the hammer mill was operational, the injuries resulting 

from a fall on the platform likely would be limited in severity. In this context, the kind of injuries 

McPheeters describes are more likely to cause lost work time than to be permanently disabling. 

Accordingly, I reduce the type of injury in Order No. 8542431 from “permanently disabling” to 

“lost workdays or restricted duty” 

 Nevertheless, the Commission has consistently recognized that muscle strains, sprained 

ligaments and tendons, and broken bones are injuries of a sufficiently serious nature to support 

an S&S designation. S & S Dredging Co., 35 FMSHRC 1979, 1981 (July 2013) (overturning a 

judge’s ruling that muscle strains were insufficient to underpin an S&S designation); see, e.g.,

Maple Creek Mining, Inc., 27 FMSHRC 555, 562–63 (Aug. 2005) (affirming Judge’s conclusion 

that serious injuries such as a leg or back injury would arise from the failure to maintain an 

escapeway in a safe condition); Buffalo Crushed Stone Inc., 19 FMSHRC 231, 238 n.9 (Feb. 

1997) (concluding that slipping on a walkway would result in reasonably serious injuries such as 

a finger or a wrist fracture); Southern Ohio Coal Co., 13 FMSHRC 912, 918 (June 1991) 

(affirming Judge’s conclusion that a trip and fall would result in reasonably serious injuries such 

as “sprains, strains, or fractures”). 

 Given the evidence before me, I determine that the Secretary has met his burden of 

proving that reasonably serious injuries were reasonably likely to occur, thus satisfying the 

fourth element of Mathies. Based on my above determinations, I therefore conclude that this 

violation was appropriately designated as S&S. 

 c. Negligence and Unwarrantable Failure

 The Secretary designated this violation as an unwarrantable failure, characterizing 

Campbell County’s negligence as high. In support of this allegation, the Secretary points to the 

obvious nature of the risk and the length of time the problem existed. (Sec’y Br. at 23.) In 

 9

 Respondent’s argument relies on Hamilton Pipeline, Inc., 24 FMSHRC 915 (Oct. 2002) 

(ALJ). In Hamilton, the judge determined on the evidence that a single crooked step on a short, 

narrow stairway bordered by two railings did not present a risk of injury resulting in lost 

workdays. Id. at 924–925. Those same facts are not present in the case before me. Furthermore, 

decisions by Administrative Law Judges do not constitute binding precedent. 29 C.F.R. 

§ 2700.69(d). 

36 FMSHRC Page 2596
response, Campbell County asserts that its efforts to limit access to the walkway during 

operation and its policy of cleaning the walkway whenever work must be performed in the area 

mitigate the operator’s negligence. (Resp’t Reply Br. at 8.) 

 Each of the Commission’s unwarrantable failure factors suggests Respondent’s conduct 

was aggravated. First, the extent of the violation was significant, spreading across half the length 

of the eight-foot walkway and covering nearly the entire width of the walkway, as well as the 

platform directly under the feeder. Second, Campbell County’s own safety inspections put the 

operator on notice regarding the need to clean the accumulating debris. Furthermore, Respondent 

had been cited for violations of section 56.11001 four times in the two years prior to the order in 

question, so it was well aware of the requirements of the regulation. (Tr. 84:7–14.) Third, the 

operator did not provide any evidence of specific efforts it had made to prevent the material from 

collecting, other than the assertion that miners servicing the hammer mill were told to grab both 

grease and a shovel to clear their way. Indeed, Campbell County did not clear the rock piles on 

even a daily basis and instead apparently adopted a policy of allowing the material to collect for 

days at a time. Fourth, the violation was obvious, accumulating quickly and spreading across the 

breadth of the walkway. Furthermore, the material was ejected in the direct line of site of the 

machine’s operator. Because of the rapidity with which the hammer mill expelled material, the 

operator either knew or should have known of the existence of the accumulated debris on June 

22. Sixth, as I determined above, the trip-and-fall hazard was dangerous because it could result 

in broken bones, torn tendons, or a head or back injury. 

 In response, Campbell County suggests its negligence is mitigated because the debris 

accumulation took place over two days instead of the inspector’s estimated week. (Resp’t Reply 

Br. at 4.) Respondent’s argument is unsupported. It defies logic to suggest that the operator 

should be granted leniency because the machine creating a hazard functioned worse than the 

inspector believed when he found the violation. In light of the obviousness of the violation and 

the significant degree of danger, leaving the material on the walkway for two days is aggravated 

conduct. Cf. Midwest Material Co., 19 FMSHRC 30, 32–37 (Jan. 1997) (finding unwarrantable 

failure for extremely unsafe violation that lasted only minutes). 

 Campbell County next argues that its negligence is mitigated because the hammer mill 

was operating within its design parameters. (Resp’t Br. at 14.) Respondent’s reliance on the 

hammer mill’s safety manual is misplaced. The manual warns of the danger of ejected material 

and explicitly states that alterations may be necessary to conform to federal and state safety 

regulations. (Ex. R–3.) 

 Similarly, Campbell County Highway Superintendent Potters testified expansively on the 

pristine safety record the County Quarry enjoys. While it may be true that Campbell County has 

a commendable record of injury-free operations, MSHA does not need an injury to find a 

violation of a mandatory health or safety standard. The Mine Act is a strict liability statute. 

Western Fuels-Utah, Inc. v. FMSHRC, 870 F.2d 711, 716 (D.C. Cir. 1989). 

 In light of these factors, I find that the Secretary has met his burden of showing that 

Respondent’s conduct was aggravated, amounting to an unwarrantable failure. 

36 FMSHRC Page 2597
 Likewise, I determine Campbell County’s negligence to be high. See 30 C.F.R. 

§ 100.3(d) at Table X (suggesting “high negligence” where the “operator knew or should have 

known of the violative condition or practice, and there are no mitigating circumstances.”). 

Again, the violative conditions were readily apparent and exposed Campbell County’s miners to 

significant injuries. Rather than clearing the walkway, however, Campbell County chose to 

continue operating the hammer mill. 

d. Penalty

 The Secretary also proposed a $4,000.00 civil penalty for this violation. Again, I have 

found that this order was properly designated S&S. I have also found Campbell County’s 

negligence to be “high” and its actions to amount to an unwarrantable failure. 

 Turning to the relevant factors for assessing a penalty, I again note the mine’s history of 

violations. The record does not show that the Secretary’s proposed penalty would impinge on 

Campbell County’s ability to remain in business, but I note that the County Quarry is a small 

mining operation. Campbell County’s negligence in allowing the debris accumulation was high, 

but the hazard posed only the risk of lost workdays or restricted duty. Finally, Campbell County 

swiftly made adjustments to the hammer mill after the MSHA inspection to prevent future debris 

accumulations. 

 The evidence does not support a penalty above the Secretary’s proposed penalty, which is 

the statutory minimum penalty allowed for an order issued under section 104(d)(2). 30 U.S.C. 

§ 820(a)(3)(B); see Stansley Mineral Resources, 35 FMSHRC at 1177. Accordingly, I hereby 

assess a civil penalty of $4,000.00 for this violation. 

 

VI. ORDER

 In light of the foregoing, it is hereby ORDERED that Order No. 8542424 is 

AFFIRMED. It is further ORDERED that Order No. 8542431 be MODIFIED by changing the 

type of injury from “permanently disabling” to “lost workdays or restricted duty.” 

 WHEREFORE, Respondent is ORDERED to pay a penalty of $8,000.00 within 40 days 

of this decision. 

 /s/ Alan G. Paez

 Alan G. Paez 

 Administrative Law Judge 

36 FMSHRC Page 2598
Distribution: 

Leslie P. Brody, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street, S.W., 

Room 7T10, Atlanta, GA 30303 

Christian Barber, Esq., U.S. Department of Labor, Office of the Solicitor, 211 Seventh Avenue 

North, Suite 420, Nashville, TN 37219-1823 

Charles W. Kite, Esq., 9925 Tierra Verde Drive, Knoxville, TN 37922 

/lct 

36 FMSHRC Page 2599
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 

September 30, 2014 

DECISION AND ORDER

Appearances: Matthew Vadnal, United States Department of Labor, Office of the 

Solicitor, Seattle, Washington for Petitioner; 

 Willa B. Perlmutter, Crowell & Moring, Washington, DC 20004, for 

Contestant and Respondents; 

 Mike Clary, Hecla Limited, Coeur d’Alene, Idaho, for Respondent Hecla, 

Limited. 

Before: Judge L. Zane Gill

HECLA LIMITED, 

 Contestant 

 v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

CEMENTATION USA, INC., 

 Respondent 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

HECLA, LIMITED, 

 Respondent 

 CONTEST PROCEEDING 

Docket No. WEST 2011-1390-RM 

Order No. 8565445; 08/16/2011 

Mine: Lucky Friday 

Mine ID: 10-00088 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2012-0631-M 

A.C. No. 10-00088-281470 M445 

Mine: Lucky Friday Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2012-0760-M 

A.C. No. 10-00088-283636 

Mine: Lucky Friday Mine 

36 FMSHRC Page 2600
This proceeding arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (1994) (“Mine Act” or “Act”), involves one section 104(d)(2) Order, 30 U.S.C. § 

814(d)(2), issued by the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) to Hecla, Limited, and one section 104(d)(1) Citation, 30 U.S.C. § 814(d)(1), issued 

by MSHA to Cementation USA, Inc. (“Cementation”). The parties presented testimony and 

documentary evidence at the hearing held in Coeur d’Alene, Idaho, on January 14 and 15, 2014. 

 The original dockets before me consisted of two civil penalty proceedings – WEST 2012- 

0760M and WEST 2012-0631M − and three contest proceedings – WEST 2011-1390 RM, 

WEST 2011-1428RM, and WEST 2011-1429RM. On November 5, 2012, I signed an Order to 

Sever and Reconsolidate. I ordered that Citation Nos. 8559609 and 8559610 be severed from 

WEST 2012-0760M, be given a new docket number, and be consolidated with WEST 2011-

1428RM and WEST 2011-1429RM. I also ordered that WEST 2012-0760M, WEST 2012-

0631M, and WEST 2011-1390M be consolidated. Therefore, only Order No. 8565445 and 

Citation No. 8565446 are before me in this proceeding. 

 For the reasons stated below, I vacate both Order No. 8565445 and Citation No. 8565446. 

I. Stipulations 

At the hearing, the Secretary read the Stipulations into the record: (Tr. 9:3 – 10:20) 

1. Hecla admits that its Lucky Friday Mine is a mine within the definition of the Mine 

Safety and Health Act of 1977. 

2. At all times relevant to these matters, the Lucy Friday Mine had products that entered 

interstate commerce or had operations or products which affected interstate commerce 

within the meaning and scope of Section 4 of the Act. 

3. Hecla admits that is was a mine operator within the meaning of the Act and subject to the 

Act. 

4. Cementation admits that it is a mine contractor within the meaning of the Act and subject 

to the Act. 

5. Cementation and Hecla admit that this proceeding is subject to the jurisdiction of the 

Federal Mine Safety and Health Review Commission, and the presiding administrative 

law judge has authority to hear this case, issue a decision, and assess the appropriateness 

of the evidence. 

6. At all relevant times, Keith Palmer was an authorized representative of MSHA acting in 

an official capacity. 

7. Hecla and Cementation were served copies of the citation or order with qualifications at 

issuance in this proceeding by an authorized representative of MSHA. 

36 FMSHRC Page 2601
8. Exhibit A of the Secretary’s Petition for Assessment of Civil Penalty, actively sets forth

the number of inspection days at the site for Cementation and Hecla, their history of

violations, and the number of persons affected.

9. Hecla timely contested the order contained in these dockets, and Hecla and Cementation

served timely answers to the Secretary’s Petitions for Assessment of Penalty.

10. The maximum proposed penalties for the alleged violations will not affect the ability of

Hecla or Cementation to remain in business.

11. The exhibits the parties intended to offer into evidence and exchanged prior to the

hearing are not subject to objection on that basis.

II. Background Facts

The Lucky Friday Mine (“the Mine”) is an underground silver mine owned and operated 

by Hecla Limited (“Hecla”) in Mullan, Idaho. (Tr. 25:2; 27:17-18) Hecla hired Cementation 

USA, Inc. (“Cementation”) to construct a new vertical shaft at the Mine. (Tr. 25:15-16) The 

4860 slot1

 of the Mine at the 51 ramp2 is a three-sided slot that is about eighteen feet high, 

twenty-five feet wide, and eighty feet deep. (Tr. 36:19-20; 37:18; 37:23-24) The Mine uses slot 

4860 for a gob pile, or waste debris pile. (Tr. 98:2-4) On April 7, 2011, a gob pile located at the 

4860 slot was cleaned up to remove combustible materials3 from the pile. (Tr. 48:14-19; 123:19-

22; 242:7-19; 349:7-11) What remained behind among rock, cement, and metal debris in the 

4860 slot were some pieces of timber, some fire-retardant vent bags, one HDPE pipe, and one 

wooden pallet. (Tr. 215: 22-25; 266:20-267:19; 352:15-18) After the April 7, 2011 clean up date, 

management at the Mine decided not to dump any more gob at the 4860 slot. (Tr. 297:5-6) 

 Justin Bartlett,4 who was in charge of cleaning up the 4860 slot on April 7, 2011, testified 

that he did not think there was any waste debris left that was a fire hazard. (Tr. 352:19-24) Mr. 

Bartlett testified that there was old wire mesh, rock, shotcrete, and some timbers left, but nothing 

in the pile that he considered easily combustible. (Tr. 215:21-25) William Strickland5

 also 

1

 A slot is an “area that is cut out of rock that can be used to store materials... mine 

trash... permanent electrical boxes... powder magazines, [and] cap magazines....” (Tr. 28:2-8) 

2

 The 51 ramp is a winding ramp “from the 4900 level going up along the vein and 

providing access to the lead, silver, zinc veins for the mining activities.” (Tr. 213:12-14) 

3

 “Combustible material” is defined as “a material that, in the form in which it is used and 

under the conditions anticipated, will ignite, burn, support combustion or release flammable 

vapors when subjected to fire or heat. Wood, paper, rubber, and plastics are examples of 

combustible materials.” 30 C.F.R. §57.2. 

4

 At the time of the hearing, Mr. Bartlett was employed by Cementation at the Lucky 

Friday Mine and had been for approximately two and a half years. (Tr. 244:20 – 245:12) He had 

worked as a construction miner for approximately three and a half years at the time of the 

hearing. (Tr. 245:13-16) 

5

 At the time of the hearing Mr. Strickland was employed by the Franklyn Company and 

 (continued...) 

36 FMSHRC Page 2602
testified that he did not consider anything he saw in the gob pile to be a fire hazard. (Tr. 226:7; 

242:16-19). James Duane Perryman6

 also saw nothing in the pile that he considered to be a fire 

hazard (Tr. 285:10-22; 293:5-8) and said that he “went back up there to make sure that we got 

everything, and I didn’t see anything else.” (Tr. 324:12-14) 

The following month, however, excavations in the Mine created more waste which was 

moved to the 4860 slot on approximately May 29, 2011. (Tr. 295:3-6; 297:17-19; 300:14-16) 

The new gob items included metal split sets, metal mats, and approximately three pieces of old 

wood lagging (3” x 12” planks, each about six to eight feet long). (Tr. 296:4-7; 315:4-6; 317:6-7) 

After the additions to the gob pile at the 4860 slot, the slot area was barricaded, first with a snow 

fence (Tr. 299:10-13), which was later replaced by a chain-link fence. (Tr. 36:10-12, 234:12, 

300:20) A sign was hung on the fence notifying miners that the area was not ventilated. (Tr. 

300:11-12)7 As of July 2011, the gob pile itself was approximately ten feet wide by twelve feet 

high. (Tr. 330:15) 

On July 26, 2011, an arsonist intentionally set fire to the gob at the 4860 slot of the Mine 

at the 51 ramp at or around 6:30 pm. (Tr. 22:15; 27:24-25; 31:10-11; 170:22-23). The mine was 

safely evacuated, and there were no injuries as a result of the fire. (Tr. 70:19-25) The fire lasted 

about twelve to fourteen hours before it was put out. (Tr. 31:13) MSHA Inspector Keith Palmer8

(“Inspector Palmer”) arrived on July 27, 2011, to investigate. (Tr. 26:11-20) Additionally, 

personnel from the local Shoshone County Sheriff’s office, the Idaho State Fire Marshal’s office, 

and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives came to the Mine to 

investigate the fire. (Tr. 33:3-21) 

III. The Law

The Secretary bears the burden of proving all elements of a citation by a preponderance 

of the evidence. In re: Contests of Respirable Dust Sample Alteration Citations: Keystone 

5 (...continued) 

was working as a contract employee for Hecla. (Tr. 202:5-10) He was project engineer for all of 

Hecla’s projects by overseeing all design work, engineering work, and supervises four 

construction coordinators. (Tr. 202:12-17) 

6 At the time of the hearing, Mr. Perryman was employed by the Franklyn Company and 

was working in a temporary-type position for Hecla. (Tr. 248:20-25) He was a construction 

coordinator and was in charge of helping Hecla oversee the shaft construction project. (Tr. 

249:4-6)

7 To the best of Inspector Palmer’s knowledge, there was no active work being performed 

in the 4860 slot. (Tr. 98:10-12) 

8

 At the time of the hearing, Inspector Palmer had been employed by MSHA since 

January of 2001, (Tr. 17:13-16) as the field office supervisor for the Kent, Washington MSHA 

field office. (Tr. 20:19-20) At MSHA, Inspector Palmer worked as a mine inspector, he worked 

for the educational policy and development educational field services division, and was a field 

office supervisor at the time of the hearing. (Tr. 19:17-21) Before working at MSHA, Inspector 

Palmer worked approximately ten years at Asarco Incorporated in Arizona, which is an open-pit 

copper mine. (Tr. 17:21-24) Inspector Palmer also worked for the State of Arizona Game and 

Fish Department as a crew leader for about three or four years. (Tr. 19:9-11) 

36 FMSHRC Page 2603
Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d 151 F.3d 1096 (D.C. Cir. 1998); Jim 

Walter Resources, Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The Secretary’s 

burden is to prove the violations and related allegations, e.g., gravity and negligence, by a 

preponderance of the evidence.”) The Citation and Order in this case allege a violation of Section 

57. 4104(a) of the Mine Act, which states that “[w]aste material, including liquids, shall not

accumulate in quantities that could create a fire hazard.” 30 C.F.R. § 57.4104(a). 

The Secretary must prove by a preponderance of evidence that waste material 

accumulated and that the accumulation “create[d] a fire hazard.” 30 C.F.R. § 57.4104(a). The 

regulation, however, is silent on the quantity of waste that is allowed to accumulate before a 

waste pile is considered to be a fire hazard. Therefore, the appropriate analysis is 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.” Canon 

Coal Co., 9 FMSHRC 667, 668 (Apr. 1987); Rock of Ages Corp. v. Secretary of Labor, 170 F.3d 

148, 156 (2d Cir. 1999); Walker Stone Co. v. Secretary of Labor, 170 F.3d 1080, 1083-1084 

(10th Cir. 1998). This test is an “objective – not subjective – analysis of all the surrounding 

circumstances, factors, and considerations bearing on the inquiry in issue.” Canon Coal Co., 9 

FMSHRC at 668. 

In Essroc Cement Corp., 33 RMSHRC 459 (Feb. 2011) (ALJ Manning), Administrative 

Law Judge Manning vacated a citation that alleged a violation of § 56.4104(a)9

 and found that: 

[T]he Secretary did not meet the burden of establishing that the 

condition created a fire hazard. The flashpoint of hydraulic fluid is 

quite high and there were no ignition sources in the area. A spark 

or other similar event would be insufficient to ignite the fluid [...] 

Without a realistic possibility of a fire hazard, there is no violation. 

33 FMSHRC at 465.10 

9

 Section 56.4104(a) states that: “[w]aste materials, including liquids, shall not 

accumulate in quantities that could create a fire hazard.” 30 C.F.R. § 56.4104(a). This language 

is exactly the same as Section 57.4104(a), however, Part 56 of the Mine Act pertains to surface 

metal and nonmetal mines and Part 57 pertains to underground metal and nonmetal mines. 

10 The Secretary attempts to analogize Section 77.1104 to Section 57.104(a). He cited 

case law that states that “the Secretary is not required to provide that an ignition or explosion 

was reasonably likely to occur. Rather, he is required to prove the presence of sufficient 

accumulations that can create a fire hazard or add to a fire hazard if an ignition source is 

introduced.” Pittsburgh & Midway Coal Co., 16 FMSHRC 574, 576 (Mar. 1994) However, I 

find this argument unavailing because Part 77 pertains to surface coal mines and surface work 

areas of underground coal mines. Additionally, Section 77.1104 states that “[c]ombustible 

materials, grease, lubricants, paints, or flammable liquids shall not be allowed to accumulate 

where they can create a fire hazard.” 30 C.F.R. § 77.1104. (emphasis added) Part 56 and 57 of 

the Mine Act specifically refer to “waste materials,” whereas Part 77 specifically refers to 

“combustible materials.” 

36 FMSHRC Page 2604
The Secretary put great emphasis on the fact that the Mine Act is a strict liability statute. 

He also emphasized that mine owners are vicariously liable for employees’ deliberate violations 

and that “the Mine Act clearly contemplates that a violation may be found where the wrongful 

act is performed by someone other than the operator.” Western Fuels-Utah, et al. v. FMSHRC, 

870 F.2d 711, 716 (D.C. Cir. 1989) He further stated that the 9th Circuit Court of Appeals, in 

affirming a decision of the Commission, held that a mine owner was liable for a violation of the 

Mine Act committed by an unknown person who entered the mine property without the 

knowledge of the owner. Miller Mining Co. v. FMSHRC, 713 F.2d 487, 491 (9thCir. 1983) 

IV. The Violation

On August 16, 2011, MSHA Inspector Palmer issued Order No. 8565445 to Hecla and 

Citation No. 8565446 to Cementation alleging that both had unwarrantably failed to comply with 

30 C.F.R. § 57.4104(a).11 Section 57.4104(a) regulates a mandatory safety standard. The Citation 

and Order allege: 

An excessive amount of combustibles were [sic] allowed to 

accumulate in the 4860 slot. The 4860 slot, off of the 51 ramp, was 

used as a gob area. Old timber, driscoll pipe, hydrolic [sic] hoses, 

pallets, and card board12 had been thrown away in this area. 

Evidence indicated that this area contained the combustibles since 

at least 04/07/2011. Hecla and Cementation management was 

aware of this condition and had discussed this area on 04/07/2011. 

According to a miner, a barricade was erected to prevent access in 

this area sometime during the week of June 20, 2011 because of an 

ongoing MSHA inspection. There are several miners that work and 

travel on the 4900 level and the 51 ramp on a daily basis. There is 

no evidence that reasonable efforts were made by Hecla or 

Cementation to correct this condition. A fire occurred in this gob 

area on 7/26/2011 in which the excessive amounts of combustibles 

contributed to the intensity and duration of the fire. Management 

engaged in aggravated conduct constituting more than ordinary 

negligence because they were aware of the excessive amounts of 

combustibles and did not take reasonable efforts to remove them. 

This violation is an unwarrantable failure to comply with a 

mandatory standard. 

Ex. G-1, Ex. G-4.

The Citation and the Order also allege that the condition was reasonably likely to cause 

injury, that the injury was reasonably likely to be fatal, that the violation was significant and 

substantial (“S&S”), the negligence standard was high, and the number of persons affected was 

11 The Citation and Order are identical in substance apart from the Order being a 

104(d)(2) violation and the Citation being a 104(d)(1) violation. 

12 Inspector Palmer admitted at the hearing that there was no cardboard present in the gob 

pile. (Tr. 105:19 − 106:9) 

36 FMSHRC Page 2605
eighteen. Ex. G-1, Ex. G-4. The Secretary proposed a penalty of $63,000.00 against Cementation 

and $38,000.00 against Hecla for this violation. 

Inspector Palmer admitted that in some cases some combustible waste is allowable 

underground and that the mine has the discretion to decide how much combustible waste is 

stored underground. (Tr. 92:4-8; 92:9-18) Inspector Palmer testified that he believed the waste 

materials that accumulated in the 4860 slot created a fire hazard (Tr. 69:22 −70:1) because the 

wood in the pile and the pallet could catch fire. (Tr. 70:3-14) He testified that there was at least 

one pallet that was considered waste on the gob pile. (Tr. 89:18-21) However, Inspector Palmer 

admitted that the slot held mostly rock and dirt. (Tr. 85:10-12; 108:5-6) The Secretary admitted 

into evidence some photos taken on April 8, 2011, but they depict some limited pieces of timber 

in the gob pile in slot 4860 that are not in close proximity to one another. Ex. G-9. 

 Mr. Strickland testified that most of the combustible materials were removed, put in 

dumpsters, and sent to the surface of the mine to be discarded. (Tr. 241:25 – 242:1) Most 

importantly, Mr. Strickland testified that “[a]nything of kindling size, that concerns me more. 

Paper waste, of course, rags, of course, any material like that gets sent out in bins to the surface.” 

(Tr. 232:18-21) Further, Inspector Palmer admitted that the fire marshal was unable to determine 

how much combustible material was present before the fire. (Tr. 105: 2-5) Inspector Palmer also 

testified that there was no evidence that an abundance of combustibles had been present before 

the fire due to the small about of ash after the fire was extinguished. (Tr. 105:9-13) In Mark 

Aamondt’s, the Fire Chief of Shoshone County Fire District No. 2, report he noted that “[i]t 

could not be confirmed how much debris was removed or how much remained after the 

cleanup.” Ex. R-6, pg. 4. 

Mr. Strickland testified that the amount of combustibles in slot 4860 was at most ten 

percent, maybe less (Tr. 218:2-6) He also testified that he was not worried that the wood timbers 

were a fire hazard because it is very difficult to light 4x4s, 2x12s, 6x8s, or 6x10 timbers. (Tr. 

222:22 – 223:7) Mr. Strickland was also not worried that the pallet was a fire hazard because it is 

very difficult to light a pallet. (Tr. 223:17-23) He was not concerned that the HDPE pipe was a 

fire hazard because its melting point is above 400 degrees. (Tr. 225:11-14) Inspector Palmer 

admitted that it would be difficult to hold a match to a timber and light it on fire. (Tr. 112:8-10) 

Inspector Palmer testified that there was no ignition source identified at the 4860 slot 

other than the arsonist. (Tr. 96:10-12) Further, to the best of Inspector Palmer’s knowledge, there 

is no methane in the mine. (Tr. 101:6-7) Fire Chief Aamondt testified that he found nothing in 

the 4860 slot that was an ignition source, (Tr. 189:6-8) and that there were no electrical problems 

in the slot. (Tr. 189:9-19) After the fire was investigated, it was concluded that the fire was 

intentionally set with an open flame by a person. (Tr. 170:22-23) Inspector Palmer did mention 

other potential ignition sources – cigarettes and/or a pressurized paint can that was lit on fire. (Tr. 

215:10-14; 228:9-10) However, the Secretary presented no evidence at the hearing that these 

sources were anywhere near slot 4860. 

As stated above, the Secretary put great emphasis on the Mine Act being a strict liability 

statute and the fact that there is vicarious liability even for unknown persons who enter a mine 

and violate the Mine Act. However, the Secretary did not prove by a preponderance of evidence 

36 FMSHRC Page 2606
that a trespasser accumulated waste material in quantities sufficient to create a fire hazard in 

violation of Section 57.4104(a). The Secretary cannot use vicarious liability or the Mine Act’s 

strict liability to infer that a criminal intervener who intentionally set a fire to the gob pile in slot 

4860 somehow violated Section 57.4104(a). The Secretary also did not prove by a 

preponderance of evidence that a mine employee or agent accumulated waste material in 

quantities sufficient to create a fire hazard in violation of Section 57.4104(a). Indeed, the only 

thing that the Secretary proved by a preponderance of the evidence is that a fire was set by an 

arsonist in slot 4860, which is not a violation of Section 57.4104(a). 

While the Secretary did show that there were some waste materials in slot 4860 that were 

combustible, the Secretary failed to meet his burden by a preponderance of evidence that a 

reasonably prudent miner familiar with the purposes of Section 57.4104(a) could find that the 

accumulation of waste materials in slot 4860 could create a fire hazard. The Secretary also failed 

to present sufficient evidence that there would have been an ignition source to create a fire 

hazard if the arsonist had not intervened. Therefore, I find that Hecla and Cementation did not 

violate Section 57.4104(a). Because I find that no violation existed, I need not discuss the 

gravity, negligence, significant and substantial, and unwarrantable failure standards. 

WHEREFORE, it is ORDERED that both Order No. 8565445 and Citation No. 

8565446 be VACATED; 

It is further ORDERED that Docket Nos. WEST 2011-1390-RM, WEST 2012-0631-M, 

and WEST 2012-0760-M be DISMISSED. 

 /s/ L. Zane Gill

L. Zane Gill 

 Administrative Law Judge 

Distribution: 

 

Matthew Vadnal, United States Department of Labor, Office of the Solicitor, 300 Fifth Avenue, 

Suite 1120, Seattle, Washington 98101 

Willa B. Perlmutter, Crowell & Moring, 1001 Pennsylvania Avenue, NW, Washington, DC 

20004 

Mike Clary, Hecla, 6500 North Mineral Drive, Suite 200, Coeur d’Alene, Idaho 83815 

36 FMSHRC Page 2607

ADMINISTRATIVE LAW JUDGE ORDERS
36 FMSHRC Page 2608
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2536 

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

August 13, 2014 

 

ORDER DENYING AMERICAN COAL COMPANY’S MOTION TO SUPPLEMENT 

THE RECORD &

DECISION ON SECOND REMAND

Before: Judge Miller 

These matters are before me upon remand from the Federal Mine Safety and Health 

Review Commission. American Coal Co., 36 FMSHRC 882 (Apr. 2014). The cases involve an 

order and citation issued to the American Coal Company (“American”) by the Secretary of 

Labor, Mine Safety and Health Administration, following an inspection of a coal stockpile at 

American Coal’s New Era Mine. The Commission remanded the cases with the direction that 

the parties be allowed to file briefs and that further proceedings, as necessary, be conducted. 

Subsequently, American filed a Motion to Supplement the Record, to which the Secretary filed a 

response in opposition. The parties then filed simultaneous briefs and a joint stipulation. For 

reasons that follow, I DENY American’s Motion to Supplement the Record, and AFFIRM my 

earlier findings regarding the fact of violation in both Order No. 8418503 and Citation No. 

8418504. 

AMERICAN COAL COMPANY, 

 Contestant, 

v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Respondent. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

 v. 

AMERICAN COAL COMPANY, 

 Respondent. 

 CONTEST PROCEEDINGS 

Docket No. LAKE 2010-408-R X 

Order No. 8418503; 1/19/2010 

Docket No. LAKE 2010-409-R X 

Citation No. 8418504; 1/19/2010 

Mine: New Era Mine 

Mine ID: 11-02752 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2010-759 

A.C. No. 11-02752-219590-02 

Mine: New Era Mine 

36 FMSHRC Page 2609
I. BACKGROUND 

On January 19, 2010, MSHA inspectors issued Order No. 8418503 to American pursuant 

to section 103(k) 1 of the Act after observing what they believed to be a “mine fire” on the coal 

stockpile. At the same time, MSHA issued Citation No. 8418504 for American’s alleged failure 

to timely notify MSHA of the incident in violation of 30 C.F.R. § 50.10. American contested 

both issuances. 

On July 22, 2010 Judge Avram Weisberger held an expedited hearing to address Order 

No. 8418503. At the conclusion of the hearing the parties presented oral arguments and Judge 

Weisberger issued a bench decision vacating the order, which he later reduced to writing and 

issued on September 28, 2010. American Coal Co., 32 FMSHRC 1387 (Sept. 2010) (ALJ). 

Subsequently, the Secretary of Labor appealed the matter to the Commission. 

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. As relevant to this proceeding, the 

Commission noted: 

Indeed, this interpretation is somewhat different from the 

interpretation the Secretary presented at the hearing. Before the 

judge, [he] articulated an interpretation that included “both events 

marked by flaming combustion and events marked by smoking 

combustion.” . . . In other words, the Secretary’s interpretation at 

the hearing did not require that the smoking or smoldering 

combustion “reasonably [have] the potential to burst into flames.” 

Id. at 384-385 (citations and footnotes omitted). Accordingly, the Commission vacated the 

judge’s decision and remanded the matter for further proceedings. 2

On January 16, 2014, I issued a Decision on Remand addressing Order No. 8418503, 

which is the subject of Docket No. LAKE 2010-408-R. American Coal Co., 36 FMSHRC 176 

(Jan. 2014) (ALJ). There, the primary issue was whether the smoldering and smoking coal on 

the stockpile that the inspectors observed was a “mine fire” as that term is used in the Mine Act 

and defined by the Commission. I found that the smoking and smoldering stockpile was a fire 

and, therefore, an accident had occurred and the 103(k) order was properly issued. 

1

Section 103(k) states 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). 

2 Judge Weisberger retired while the case was on review before the Commission. The 

cases were then reassigned to me for a decision after remand. 

36 FMSHRC Page 2610
8418504. American Coal Co., 36 FMSHRC __, slip op. (Docket Nos. LAKE 2010-409-R and 

LAKE 2010-759) (Mar. 3, 2014) (ALJ). In that decision, the issue was whether American 

violated section 50.10 of the Secretary’s regulations, by failing to notify MSHA of the fire on the 

stockpile. Relying upon my finding in LAKE 2010-408-R that a mine fire had occurred, I found 

that American had failed to immediately report the incident to MSHA in violation of section 

50.10 of the Secretary’s regulations. At the request of the parties, the negligence of the citation 

was reduced to low. 

American petitioned for, and was granted, discretionary review of my decisions in the 

two contest cases and the penalty case that accompanied LAKE 2010-409-R. On review, 

American argued that it should have been offered the opportunity to file a brief on the issues 

raised following the Commission’s original direction remanding Docket No. LAKE 2010-408-R. 

The Commission agreed with American and noted that “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. 36 FMSHRC 884 (Apr. 2014). Accordingly, the cases were 

remanded so that the parties could brief the issues. 

Subsequent to the Commission’s decision, I asked the parties whether there was any other 

evidence that the parties wanted to enter into the record by stipulation and sought the parties’ 

opinion about taking further evidence in the case. After speaking to the parties and reviewing 

the record, however, I determined that a new hearing was not appropriate because both parties 

had ample time to prepare and to present evidence, including evidence on the meaning of fire 

and the fair notice issue. The parties informed the court that there was no dispute of fact and a 

hearing was not needed, but American wished to supplement the record with additional 

information, and both parties wished to file a brief.3

 I then allowed the parties time to stipulate 

to any facts or items they wished to include in the record. The parties were not able to reach any 

stipulations. Thereafter, American filed a Motion to Supplement the current record with 

testimony from depositions. The Secretary objected to the submissions and I deny the motion 

herein. Therefore, no other testimony or evidence is included in the original record made before 

Judge Weisberger but both parties have filed a brief. 

II. MOTION TO SUPPLEMENT

On May 29, 2014 American filed a Motion to Supplement the Record with Designated 

Deposition Testimony. American asks the court to supplement the formal record with 

designated deposition testimony of MSHA inspector Michael Rennie. It argues that this 

testimony is “necessary to address issues that were not directly raised at the previous hearing in 

this matter before Judge Weisberger.” American. Mot. to Supp. 2. Specifically, it argues that 

these deposition designations demonstrate that the Secretary’s interpretation of fire that was 

raised on appeal is unconstitutionally vague as applied to American in this case and therefore 

3

 American, in its Motion to Supplement the Record, states that “it is willing to forego 

requesting a new evidentiary hearing if these deposition designations are admitted into the 

formal record.” American Mot. to Supp. 2 n. 1. 

36 FMSHRC Page 2611

On March 3, 2014, I issued a second and related decision addressing Citation No. 
American did not receive fair notice.4

 Id. 2-3. American asserts that Inspector Rennie’s 

deposition testimony shows that he had seen conditions similar to those he observed on the New 

Future stockpile, a coal stockpile smoking in spots with no flames, but that he had never before 

issued a Section 103(k) order for those conditions. A reasonably prudent person familiar with the 

mining industry and the protective purpose of the standard, as of the date the order was issued, 

therefore would not recognize that the cited conditions constituted a “fire” or “mine fire” for 

purposes of the Act and its regulations. Id. at 5. Moreover, American asserts that Rennie’s 

deposition testimony indicates that he did not see “smoldering combustion” and therefore, he did 

not use the Secretary’s new interpretation of ‘fire’ when he and Inspector Crick issued the 103(k) 

Order and reporting violation on January 19, 2010. Given the arbitrary enforcement of the new 

interpretation and the inspector’s application of a definition broader than what was endorsed by 

the Commission in the original appeal, American could not know, on January 19, 2010, what 

was required of it to act accordingly. Id. at 5-6. As a result, American requests that it be allowed 

to supplement the record with the deposition testimony of Inspector Rennie. 

On June 6, 2014 the Secretary filed a Response to American’s Motion objecting to 

American’s request to supplement the record. The Secretary argues that American stipulated at 

the initial hearing that the existence of a mine fire was the issue to be decided by the Court and if 

the Court found that the conditions constituted a fire, then the order would be upheld. The 

Secretary also asserts that Inspector Rennie’s testimony is not relevant to the fair notice issue, 

given that he did not issue the 103(k) order. In any event, American did have notice of the 

Secretary’s interpretation of the word “fire”. The Secretary argues that smoke without flame is 

the true issue for decision and whether smoldering or smoke have the potential to burst into 

flames does not change the issue of notice to the mine. While the Secretary acknowledges that 

there is an “additional requirement that a smoldering location have the reasonable potential to 

burst into flame,” American need only have known that smoldering was sufficient for a fire. 

American asserts that the deposition testimony is relevant to the issue of “fair notice” and 

whether “smoldering combustion” existed on the day the order was issued. The motion to 

supplement seeks to introduce deposition testimony regarding what Rennie observed on the day 

the order was issued and his previous treatment of allegedly similar conditions. While the issue 

of notice is relevant based upon the Commission’s direction on remand, American offers no 

reasonable justification to now address Rennie’s deposition testimony. Clearly the question of 

statutory interpretation, as well as fair notice was at issue in the original proceeding and the 

record demonstrates that the parties argued those issues before Judge Weisberger. Moreover, 

American deposed Rennie prior to the hearing and could have elicited similar testimony at 

hearing. American asked for an expedited hearing on the issues here, made time to depose 

witnesses, and presumably was prepared to defend its position before the ALJ. While the 

original hearing focused upon the limited issue of whether there was a fire, American also raised 

the issue of fair notice in its argument to the Court. American had its opportunity to include this 

 4

 American points to the difference in the Secretary’s interpretation of “mine fire” that he 

put forth before the Commission, which included “both events marked by flaming combustion 

and events marked by smoldering combustion that reasonably has the potential to burst into 

flames[,]” from the interpretation the Secretary argued before the judge, which included “both 

events marked by flaming combustion and events marked by smoking combustion.” American 

Mot. to Supp. 2. 

36 FMSHRC Page 2612
information in the record, and failed to do so. Parties are responsible for developing a complete 

record at hearing. Given the lack of any reasonable justification for why American failed to 

address the deposition testimony at hearing, I decline to allow it now. See e.g., Hansen Truck 

Stop, Inc., 26 FMSHRC 293 n. 1 (Mar. 2004) (ALJ). In addition, since both parties had equal 

opportunity to present evidence and develop a factual record, no matter what legal arguments 

they chose to raise, there is no reason to reopen the record and allow a new hearing on the 

matter.5

 Accordingly, I DENY American’s Motion to Supplement and will not consider the 

deposition testimony of Inspector Rennie, or the arguments premised upon that testimony. 

III. DISCUSSION

On June 23, 2014 the parties filed simultaneous briefs. American, in its brief, argues first 

that that the Secretary failed to meet his burden of proving that the conditions cited constituted 

“smoldering combustion that reasonably has the potential to burst into flames,” and second, that 

it lacked fair notice of the Secretary’s new interpretation. American Br. 4. The Secretary argues 

that ample evidence supports a finding of a mine fire as defined by MSHA to include smoldering 

that has the reasonable potential to burst into flame, and that the mine did receive fair notice of 

MSHA’s interpretation. After careful consideration of all the evidence in the record, finding no 

conflict in the facts presented at hearing, I find that the condition of the coal stockpile constituted 

a “mine fire.” 

Interpretation of mine fire. American contends that, on remand, the court should defer to 

the Secretary’s prior interpretation of what constitutes “smoldering” or “smoldering combustion” 

as evidenced by articles and treatises submitted by the Secretary. American Br. 4. Those 

articles and treatises, for the most part, state that smoldering combustion requires the presence of 

oxygen and is evidenced by heat generation, some form of ‘glowing’ or ‘illumination,’ visible 

smoke, and ‘toxic gasses’ such as carbon monoxide that give way to complex chemical reactions. 

American Br. 4-5. Therefore, American argues, the Secretary must show evidence of some 

glowing or illumination in order to show that there was a fire. 

American argues that based upon the same interpretive material, self-heating of coal 

occurs along a spectrum from low temperature weathering, to non-combustion oxidation, to the 

point of spontaneous ignition, to smoldering combustion, and then possibly to flaming 

combustion. With that spectrum in mind, American argues that heat, light colored smoke, and 

noxious gases can be emitted even in the absence of ignition or combustion. Given the lack of 

any evidence regarding the observation of a flame, illuminated or glowing material, and the 

failure of the MSHA inspectors to further examine the smoking areas, analyze the purported 

white ash, or take any carbon monoxide or temperature readings, the Secretary failed to establish 

that flaming or smoldering combustion occurred. American contends that the testimonial 

evidence relied upon by the court on remand to find the existence of a fire: the sulfur-like smell, 

whitish-brownish smoke, heat waves, and white ash, can all be explained by non-combustion 

5

 Finally, even if Rennie’s testimony were added to the record, it would not change my 

decision in this case. Rennie testified to what he observed and his deposition testimony does not 

differ significantly from his testimony at hearing. In addition, a fair notice argument requires 

much greater evidence than the general testimony of one inspector who may or may not have 

seen these same conditions and failed to issue a citation. 

36 FMSHRC Page 2613

self-heating coal phenomena that do not rise to the level of a “mine fire.” Id. at 8-10. 
In the first decision on remand, I relied upon the facts from the transcript as presented by 

each of the witnesses who testified, including MSHA supervisor Rennie, mine inspector Crick, 

and American’s witness, Michael Smith. The transcript was short but each party had the 

opportunity to present its evidence and to cross examine all witnesses. In that previous decision 

I explained that Rennie, who has been a mine inspector for 20 years, observed the five areas 

described as smoldering and took photographs, which are included in the file as exhibits. 

Inspector Crick, while a fairly new inspector, had more than 20 years of mining experience and 

once owned a safety company where he trained miners in the area of stock pile safety. Crick’s 

testimony included a description of the stockpile and what he observed at the time he issued the 

order. He explained that he noted a sulfur smell, and that he observed smoking and smoldering 

material from about 5 feet away. He described the smoke as whitish and brownish with visible 

heat waves and he observed white ash around the area. American’s only witness, Michael Smith, 

who was a member of its safety department testified on behalf of the mine. He observed the 

same areas as the inspectors and also did not see any flames. He had fire brigade training once 

each quarter while at the mine, and he was never called to fight a fire without a flame. (Tr. 106-

107). Smith described the workings of the Galacia complex and the reasons for having 

stockpiles of coal outside the mine. He says he was within 60 to70 feet of the smoking and 

smoldering but did not see any flame and his carbon monoxide detector did not alarm. When 

asked if he saw white ash, he said he did not, but saw a grayish rock that comes out with the coal. 

His opinion was that there was no fire. He did not comment on whether it was windy or that if 

the smoking and smoldering coal came into contact with oxygen it would ignite. 

While I understand American’s argument that the conditions observed, the smoldering, 

white ash, heat waves and sulfur smell could lead to results other than combustion and fire, there 

is no evidence in the record that is the case. Instead, the mine inspector’s unrefuted testimony is 

that it was windy on the day of the inspection and that the smoldering areas, when exposed to 

oxygen could reasonably lead to combustion. While the inspectors did not specifically testify 

that they observed some kind of illumination, the testimony they presented is sufficient to 

suggest a fire existed at the mine. 

American next argues on this second remand that Inspector Crick did not rely upon the 

Secretary’s new interpretation, and instead relied upon his personal definition of ‘fire’ and 

determined that when “[y]ou see smoke, there’s fire.” American Br. 11. Though the inspector 

claimed to have relied upon his “life experience and on his experience as a volunteer firefighter,” 

American points out that the trial judge did not accord much weight to the inspector’s opinions. 

American argues that, since the trial judge was the only judge to preside over and observe 

Inspector Crick’s testimony, this court should defer to that credibility determination. American 

Br. 11. I note that in Judge Weisberger’s discussion of deference in the first decision, he writes 

that he is aware of no case in which the position of the Secretary’s witness is a basis for 

deference. In doing so, in a footnote, he mentions that he does not give much weight to the 

Secretary’s witness, who is presumably Crick, because while Crick has extensive experience as a 

firefighter, there is no evidence that the experience relates to coal fires. Further, he says, Crick 

was not established as an expert. American Coal Co., 32 FMSHRC 1387 (Sept. 2010) (ALJ), n. 

5. I disagree with American’s interpretation of Judge Weisberger’s footnote and instead I find

36 FMSHRC Page 2614
that the fact that an ALJ gave less weight to Crick’s opinion when discussing the issue of 

deference does not translate into a credibility finding nor does it support a finding that Crick’s 

lay opinion should be disregarded. Crick described in detail what he observed and how he 

interpreted it based upon his experience and particularly his experience as a firefighter. While I 

agree that Crick was not an expert, neither was any other witness at the hearing. Each witness 

relied upon his experience to translate what he observed into his opinion. For the MSHA 

supervisor and MSHA inspector, it translated into a fire, but not so for the safety supervisor at 

the mine. I relied upon the facts presented by each witness in my earlier decision and do so in 

this one. 

 

American also argues that the Secretary has not offered an interpretation of, nor provided 

any credible evidence regarding, the “reasonable potential to burst into flames” element endorsed 

by the Commission. American Br. 12-13. American asserts this element was not raised before 

or during the hearing, the Secretary did not directly address it, and American was not given the 

chance to present evidence to rebut it, or cross-examine the Secretary’s witnesses regarding their 

testimony upon it. Moreover, American argues, the only evidence that could be construed to 

address this element was the inspector’s testimony that if oxygen or air hit the cited areas, they 

could burst into flame at any time. I find this argument also to be without merit. American had 

an opportunity to call any and all witnesses to discuss combustion and the potential of the coal, 

as observed, to lead to a fire, or a flame. The Secretary was the only party to produce any 

evidence of what causes coal to burst into flames and if American failed to cross examine on that 

testimony, or rebut it, then it did so by choice. The transcript reflects that both parties were 

focused upon the issue of having a flame to define a fire at hearing. American had an 

opportunity to present evidence about what constitutes a fire and how the smoking and 

smoldering material can be defined. The only evidence in the record on that issue, however, is 

Crick’s testimony that it was possible on that windy day for oxygen to mix with the smoldering 

areas and burst into flame. While the evidence is not overwhelming on either side, and both 

parties could have done a much more thorough job of presenting evidence in the case, the 

Secretary did meet his basic burden of proof and American provided no rebuttal. 

 

American, while citing a source relied upon by the Secretary during the initial appeal,6

also argues that “propagation and spreading of smoldering combustion as well as how 

smoldering combustion transitions to flaming combustion are complex technical issues involving 

a number of factors.” Id. at 14. American argues that the Secretary presented virtually no 

evidence on these issues. Moreover, the source cited by the Secretary indicates that when 

smoldering combustion occurs below the surface of a stockpile and it begins migrating toward 

the surface, it does not have the potential to burst into flames until it reaches the surface, which 

can be a slow process depending up on the fuel layer above the smoldering material. Here, there 

is no evidence that the alleged smoldering areas were on the surface and the inspectors took no 

steps to determine if smoldering occurred on the surface or below the surface. American Br. 16. 

American is correct that many documents were submitted in this case with little or no 

explanation and that a number of complex issues regarding combustion are noticeably absent 

from the record. However, the record reflects that both Crick and Rennie agree that the 

 6

 American cites T.J. Ohlemiller, National Fire Protection Association, SFPE Handbook 

of Fire Protection Engineering, §2, Chap. 9, “Smoldering Combustion,” at 2-200, 2-201 to 2-207 

(3d ed. 2002). 

36 FMSHRC Page 2615
smoldering, when mixed with oxygen, would burst into flames. Again, American did not refute 

that finding in its cross examination or in its case in chief. 

Applying the Secretary’s interpretation, I find that the area observed and subsequently 

cited constitutes a “mine fire” based upon the observation of smoke, ash, and heat as well as the 

smell of sulfur. Both Crick and Rennie testified that they observed smoking and smoldering 

areas on the stockpile. Additionally, Crick testified that he observed “heat waves” and white ash 

in the smoking and smoldering areas. Further, he explained that if oxygen or air hit those areas, 

they “could burst into flame at any time.” (Tr. 59). Smith, the mine’s sole witness, did not 

testify to the existence of smoke or smoldering material, and instead offered that he did not see 

flames, “hot coals,” or white ash. While Smith testified that he was only able to get within 60 to 

70 feet of the smoldering areas, Crick indicated that he was able to travel within 5 feet of at least 

one of the areas. Given the testimony as a whole, I find that smoke, ash, and smoldering areas 

existed on the New Future Stockpile and those areas had the potential to burst into flame at any 

time; therefore there was a fire on the stockpile, which in turn is an accident as described by the 

statute. Given the testimony of the witnesses at hearing and accepting all testimony as true, I 

reaffirm my finding that “smoke, ash, and smoldering areas existed on the New Future Stockpile 

and those areas had the potential to burst into flame at any time, and therefore there was a fire on 

the stockpile, which in turn is an accident as described by the statute.” American Coal Co., 36 

FMSHRC 176, 179 (Jan. 2014) (ALJ). 

Fair Notice Argument. American asserts that a reasonably prudent person familiar with 

the mining industry and the protective purpose of Section 3(k) of the Act would not have 

recognized that “fire” or “mine fire,” as used in Section 3(k), could include “smoldering 

combustion that reasonably has the potential to burst into flames.” American Br. 18-19. 

American points to the deposition testimony of Inspector Rennie, in which he commented that he 

previously saw similar conditions as those observed on the stockpile, but never issued a 103(k) 

order for those conditions. Rennie’s testimony is not admitted in this proceeding, but even if it 

were, I find that American had adequate notice. 

American argues that, even in the absence of Rennie’s testimony, the Secretary’s 

interpretation was never communicated to American prior to the issuance of the 103(k) order. 

The order itself mentions smoking and white colored ash, but not the reasonable potential to 

burst into flames. American is unaware of any prior history of a 103(k) order or any other 

available guidance from the Secretary that existed as of January 19, 2010 and provided advance 

notice that the Secretary’s inspectors might find smoldering or smoking areas on a surface 

stockpile devoid of flames or glowing embers to constitute a fire and hence to be an ‘accident’ 

under Section 3(k) of the Mine Act. Further, American argues that the Secretary never 

presented, before or during the hearing of this matter, the altered interpretation that was upheld 

by the Commission and requiring the Secretary to prove the additional element that smoldering 

material has the reasonable potential to burst into flames. This interpretation was not raised at 

trial and American was not given an opportunity to address this additional element. Finally, the 

Commission’s decision in Phelps Dodge Tyrone, 30 FMSHRC 646 (Aug. 2008), does not 

provide fair warning to mine operators that their surface stockpiles are subject to 103(k) orders 

absent a flaming fire. 

36 FMSHRC Page 2616
The Secretary, in his brief, argues that American had notice of the Secretary’s 

interpretation that a fire included smoldering combustion that reasonably has the potential to 

burst into flames. Sec’y Br. 2. The Secretary states that (1) American stipulated at hearing that 

the existence of a fire was the singular issue in the case and that a determination as to whether a 

fire existed would dispose of the case, (2) the Secretary’s interpretation of the standard at hearing 

gave American notice that MSHA considered smoldering combustion to be ‘fire’ without the 

presence of flames, (3) that the issue of whether the smoldering locations had the potential to 

burst into flames was tried at the original hearing, and (4) that the trial record contains evidence 

regarding the conditions observed: that is smoke, sulfur odor, white ash, and heat waves, such 

that the mine operator should reasonably have believed that a mine fire existed on New Future 

Stockpile. 

The Commission has stated that “due process considerations preclude the adoption of an 

agency’s interpretation which ‘fails to give fair warning of the conduct it prohibits or requires.’” 

Lafarge North America, 35 FMSHRC 3497, 3500 (Dec. 2013) (citing Gates & Fox Co. v. 

OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986)). Fair notice is provided when a party has “actual 

notice of MSHA’s interpretation . . . prior to enforcement . . . against the party.” Id. (citing 

Consolidation Coal Co., 18 FMSHRC 1903, 1907 (Nov. 1996)). In the absence of actual notice, 

the Commission has applied the “reasonably prudent person” test, in which “the violative 

condition is appropriately measured against the standard of whether a reasonably prudent person 

familiar with the factual circumstances surrounding the allegedly hazardous condition, including 

any facts peculiar to the mining industry, would recognize a hazard warranting corrective action 

within the purview of the applicable regulation.” Alabama By-Products Corp., 4 FMSHRC 

2128, 2129 (Dec. 1982). The Commission has explained that “‘the appropriate test is not 

whether the operator had explicit prior notice of a specific prohibition or requirement,’ but 

whether a reasonably prudent person, familiar with the protective purposes of the standard, 

would have ascertained the specific prohibition of the standard and concluded that a hazard 

existed in that ‘particular factual setting[.]’” Lafarge North America, 35 FMSHRC at 3501 

(citing Ideal Cement Co., 12 FMSHRC 2409, 2415-416 (Nov. 1990). 

There is no evidence in the record that the Secretary articulated his interpretation 

introduced during review before the Commission directly to American prior to the issuance of 

the 103(k) order. However, I find that the purpose of the Act, Congress’ recognition of the 

dangers of smoldering flameless fires, and prior Commission case law involving an identical 

interpretation of the term “fire” are all things that a reasonably prudent person familiar with the 

mining industry would have been aware of and considered to determine that the conditions on 

the stockpile amounted to a hazard that warranted corrective action within the purview of the 

cited provision of the Act. 

Section 103(k) of the Act provides, in pertinent part, 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). The Act defines the word “accident” as “includ[ing] a mine 

explosion mine ignition, mine fire, or mine inundation, or injury to, or death of, any person.” 30 

U.S.C. § 802(k) (emphasis added). 

36 FMSHRC Page 2617
In the Commission’s original decision, relying upon the legislative history of the Act, it 

stated that “Congress understood that ‘mine fires’ may manifest themselves differently in 

different environments or scenarios.” American Coal Co., 35 FMSHRC 380, 383-384 (Feb. 

2013). Further, it stated that “the purpose of the Mine Act is to enhance safety standards ‘to 

prevent death and serious physical harm.’” Id. (citing 30 U.S.C. § 801(c)). In upholding the 

Secretary’s interpretation of the term “mine fire,” the Commission noted that the “proffered 

interpretation [was] also aligned with the purposes of the Act” and agreed that 

“Time is of the essence when dealing with a fire, and requiring an inspector who observes 

smoldering coal to wait to observe a flame before evacuating an area may cause a delay that is 

the difference between life and death.” 35 FMSHRC at 385. 

Mine operators are aware of the broad nature in which safety standards are to be 

interpreted and the dangers associated with mine fires. Here, the Secretary’s interpretation, 

while broad, is certainly one a reasonably prudent person familiar with the dangers of fire and 

the Act’s purpose of enhancing safety would be aware of and expect. The testimony of the 

MSHA inspectors and that of the mine safety manager indicate that fire is a serious and everpresent hazard in coal mining. The fact that the stock pile was smoking, smoldering, smelled of 

sulfur and exhibited waves of heat would all lead a reasonably prudent person to understand that 

flames were imminent and that the conditions as described met the definition of a mine fire. 

While the Secretary did not explicitly set forth the fact that the smoldering must have the 

reasonable potential to burst into flames, I find that a reasonably prudent person would 

understand the potential for fire and that the smoldering in the manner observed by the inspectors 

was considered a fire. 

American also argues that the Commission’s decision in Phelps Dodge Tyrone, Inc., does 

not provide notice of the Secretary’s interpretation. 30 FMSHRC 646 (Aug. 2008). 

Specifically, American asserts that Phelps Dodge Tyrone “involved the term ‘fire’ as used in 30 

C.F.R. § 50.2(h)(6) and as the Commission recently recognized, ‘Section 50.2 plainly limits its 

application to terms ‘used in this part,’ that is Part 50 of MSHA’s regulations (the reporting 

regulations).” American Br. 21 (citing Revelation Energy, LLC, 35 FMSHRC 3339 (Nov. 20, 

2013)). For reasons that follow, I disagree and find that Phelps Dodge Tyrone did provided 

notice of the Secretary’s interpretation. 

In Phelps Dodge Tyrone the mine operator petitioned for review of a Commission 

judge’s decision upholding a violation of section 50.10 of the Secretary’s regulations.7

 There, 

the Secretary alleged that an “accident,” as defined by the Section 50.2(h)(6), 8 occurred due to 

an “unplanned fire.” Id. at 651. A Commission judge, relying upon a dictionary definition of 

“fire,” decided that a flame must be present for there to be a fire, and that once a flame is present, 

the mine operator is under an obligation to comply with section 50.10 and notify MSHA. Id. at 

650. There, the Secretary put forth an interpretation of “fire” before the Commission which is 

7

 Section 50.10 provides in pertinent part that an “operator shall immediately contact 

MSHA at once without delay and within 15 minutes . . . once the operator knows or should know 

that an accident has occurred.” 30 C.F.R. § 50.10. 

8

 Section 50.2(h)(6) provides that “Accident means: . . . In underground mines, an 

unplanned fire not extinguished within 10 minutes of discovery; in surface mines and surface 

areas of underground mines, an unplanned fire not extinguished within 30 minutes of discovery.” 

36 FMSHRC Page 2618

identical to that which he advanced in the instant matter.9 Id. at 659. 
Here the Secretary has set forth an interpretation of “fire” identical to that which was set 

forth in Phelps Dodge Tyrone. While American asserts that the interpretation in Phelps Dodge 

Tyrone is limited to part 50 of the Secretary’s regulations, I disagree. At least one Commission 

judge addressing a violation of a standard not under part 50 of the Secretary’s regulations has 

interpreted the Phelps Dodge Tyrone decision to mean that smoldering coal fines are included in 

the definition of “fire.” See Powder River Coal, LLC, 31 FMSHRC 243, 254 (Feb. 2009) (ALJ). 

Moreover, given the statements of the Commission in the original decision on review and the 

majority’s acknowledgement that the instant matter was “not the first time [the Secretary] has 

proffered this interpretation to the Commission,” I find that Phelps Dodge Tyrone provided 

notice of the Secretary’s interpretation. 

While American argues that the Secretary did not present his new interpretation before or 

during the hearing of this matter, I find that notice of that interpretation was provided, as 

discussed above, by means of the Mine Act, Congress’ recognition of the dangers of smoldering 

flameless fires, and the Commission’s decision in Phelps Dodge Tyrone. American argues that 

the additional element that smoldering material has the “reasonable potential to burst into 

flames” was not raised at trial and American was not given a chance to present rebuttal evidence. 

However American was given every opportunity to present evidence about smoldering and 

combustion relevant to the case and the fact the issue was not raised at hearing does not change 

my view that the mine received fair notice of the meaning of fire prior to being issued the order 

in this case. The reasonably prudent person test must be based upon conclusions drawn by an 

objective observer with knowledge of the relevant facts. It follows that the facts to be considered 

must be those which were reasonably ascertainable prior to the alleged violation. Moreover, the 

test must be applied based upon the totality of the factual circumstances involved, not just those 

which tend to favor one party or the other. U.S. Steel Mining Co., 27 FMSHRC 435, 439 (May 

2005) (citations omitted). Therefore, I find that the Secretary provided American with fair notice 

of his interpretation. 

IV. CITATION 8418504

On June 23, 2014 the parties filed a joint stipulation regarding Citation No. 8418504. 

The parties stipulate that, if I vacate Order No. 8418503, then Citation No. 8418504 should also 

be vacated. Jt. Stip. ¶ 7. Conversely, they stipulate that, if I find that a “‘fire’ or ‘mine fire’ 

occurred on the New Future stockpile” then the violation of section 50.10, as alleged in Citation 

No. 8418504, should be affirmed. Id. The parties agree that, if Citation No. 8418504 is 

9

 A split Commission did not address the question of whether the mine had notice of the 

Secretary’s interpretation. Commissioners Jordan and Cohen, however, agreed that the 

Secretary’s interpretation was reasonable while Commissioners Duffy and Young declined to 

address the Secretary’s interpretation and instead advocated that the case should be decided on 

other, narrower grounds. Id. at 660, 663. Notably, Commissioners Duffy and Young believed 

that section 50.2(h)(6)’s use of the term ‘fire’ is hardly unique in the Mine Act and its 

regulations. ‘Fire’ is found in numerous sections of the amended Mine Act and in more than 100 

of MSHA’s Mine Act Regulations.” Id. at 664. 

36 FMSHRC Page 2619
affirmed, the negligence of the citation should be reduced from “high” to “moderate” based upon 

American’s claimed good faith belief that it had no reporting obligation because it did not 

believe there was a mine fire at the time the order and citation were written. The parties also 

agree that, if Citation No. 8418504 is affirmed, the violation will remain S&S, but that the degree 

of injury should be modified to “lost workdays or restricted duty” since although the hazard 

would result in injuries of a reasonably serious nature, those injuries would not be fatal. Id. at ¶ 

7(f). Further, the parties provide a stipulation as to the remaining penalty factors and agree that 

$4,000.00 is an appropriate penalty for this violation, which was originally assessed at 

$8,893.00. Id. at ¶ 7(j). 

Given my findings with regard to Order No. 8418503, I AFFIRM Citation No. 8418504 

as modified by the stipulations of the parties. Citation No. 8418504 is modified to “lost 

workdays or restricted duty” and “moderate” negligence. I assess a penalty of $4,000.00. 

V. ORDER 

American’s Motion to Supplement the Record is DENIED. Consistent with the 

Commission's decision and direction on remand and based upon the record evidence, I find that 

the Secretary established that Order No. 8418503 was validly issued. Order No. 8418503 is 

hereby AFFIRMED and contest proceeding LAKE 2010-408-R X is DISMISSED. Further, 

Citation No. 8418504 is MODIFIED to “lost workdays or restricted duty” and “moderate” 

negligence. American Coal Company is hereby ORDERED to pay the Secretary of Labor the 

sum of $4,000.00 within 30 days of the date of this decision. Upon receipt of payment, contest 

proceeding LAKE 2010-409-R X is DISMISSED. 

 /s/ Margaret A. Miller 

 Margaret A. Miller 

 Administrative Law Judge 

Distribution: 

 

Lauren Polk, Office of the Solicitor, U.S. Dept. of Labor, 1999 Broadway, Suite 800, Denver CO 

80202-5708 

Barbara Villalobos, Office of the Solicitor, U.S. Dept. of Labor, 

230 South Dearborn St., 8th Floor, Chicago, IL 60604 

Jason Hardin, Fabian & Clendenin, 215 South State St., Suite 1200, Salt Lake City, Utah 84111-

2323 

36 FMSHRC Page 2620
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 

September 3, 2014 

 

ORDER OF DISMISSAL

Before: Judge William B. Moran 

 Contestant, Dickenson-Russell Coal Company (“Contestant” or “DRC”), has filed a 

Notice of Contest challenging the issuance of a notice to provide safeguard, pursuant to Section 

314(b) of the Mine Safety and Health Act of 1977 (“Mine Act”).1

 In turn, the Secretary filed an 

Answer, and Motion to Dismiss, together with a memorandum in support thereof (“Response”).2

 1

 A notice of safeguard is issued under the Mine Act pursuant to section 314(b) of the 

Mine Act, 30 U.S.C. § 874(b) which provides: “Other safeguards adequate, in the judgment of an 

authorized representative of the Secretary, to minimize hazards with respect to transportation of 

men and materials shall be provided.” Section 75.1403 of the Secretary's regulations repeats 

verbatim the provisions of section 314(b) of the Act. The procedure for issuing citations for 

safeguard violations under section 75.1403 is described as: The authorized representative of the 

Secretary shall in writing advise the operator of a specific safeguard which is required pursuant 

to § 75.1403 and shall fix a time in which the operator shall provide and thereafter maintain such 

safeguard. If the safeguard is not provided within the time fixed and if it is not maintained 

thereafter, a notice shall be issued to the operator pursuant to section 104 of the Act. 30 C.F.R. 

75.1403-1(b). See generally Southern Ohio Coal Co., 14 FMSHRC 1 (Jan. 1992), Cyprus 

Cumberland Resources Corp., 19 FMSHRC 1781 (Nov. 1997).

2

 Also filed was DRC’s Motion to Expedite and the Secretary’s Opposition thereto; 

DRC’s Opposition to the Secretary’s Motion to Dismiss and its Notice of Additional Authority 

and the Secretary’s Reply to DRC’s Opposition. All filings were considered. 

DICKENSON – RUSSELL COAL CO. 

LLC 

 Contestant, 

 

 

 v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

 Respondent 

 CONTEST PROCEEDING 

Docket No. VA 2014-163-R 

Citation No. 8208673-01; 01/15/2014 

Cherokee Mine 

Mine ID 44-06864 

36 FMSHRC Page 2621
Contestant’s Contest and Associated Filings 

In its Statement in Opposition to the Secretary’s Motion to Dismiss its Notice of Contest 

(“Contestant’s Opposition”), Contestant first mentions some history with a prior safeguard at this 

mine,3 which background the Court considers to be immaterial as, at the end of the day, this 

matter still comes down to the safeguard issued on January 21, 2014, to Dickenson-Russell.4 

 No citation has been issued in connection with this safeguard notice but the Contestant 

still maintains that the Commission has jurisdiction over the matter as soon as such a notice is 

issued, regardless of whether a citation has been issued. With no Commission level decision 

addressing its claim, the Contestant points particularly to the decision issued by administrative 

law judge William Steele in Affinity Coal Co. v. Secretary, Unpublished Order (Aug 29, 2013). 

Essentially, and fairly characterizing its argument, the Contestant’s Opposition mirrors the points 

made by Judge Steele in his decision, citing cases such as Drummond Co., Inc., 14 FMSHRC 

661 (May 1992), involving review of a program policy letter (“PPL”). Referencing Drummond, 

Contestant’s position is that since the Commission has, in other contexts, broadly interpreted its 

jurisdiction, it may therefore do so whenever the Secretary’s actions adversely affect an operator. 

Opposition at 5. Contestant also maintains that section 314(b) of the Mine Act, “which was 

published under Title III of the Act, is an interim mandatory safety standard applicable to all 

underground coal mines, and because a ‘mandatory health or safety standard’ is defined to 

include interim mandatory health or safety standards under Title III, section 314(b) is a 

 3

 It is questionable whether the history offered by the Contestant actually creates a 

sympathetic picture. Apparently intended to show that MSHA erred by originally relying on an 

earlier-issued safeguard, which applied to personnel carriers transporting six or more miners, the 

personnel carrier cited in January 2014 carried less than six miners. The new safeguard was then 

issued to cover personnel carriers transporting five or less miners. It is true that a new safeguard 

had to be issued but, that said, it should not be lost that both safeguards addressed MSHA’s 

perceived need for sanding devices on those personnel carriers and that both originated from a 

perceived hazard of losing control on a slippery and wet track. 

4

 “The condition or practice on this citation should have read: The Co. #DM39 

Brookeville track mounted personnel carrier, used at this mine to transport miners, was not 

equipped with sanding devices. This personnel carrier was in the motor barn and available for 

immediate use by the miners. This is a notice to provide safeguard(s) requiring that the 

Brookeville Co. #DM39 personnel carrier and all other track mounted personnel carriers that 

transport 5 men or less be equipped with properly installed and well maintained sanding devices. 

This mine has a slope which runs from the motor barn on the surface to the mine portal, with a 

sharp curve at the bottom. This slope is outside and exposed to rain, snow, ice and other 

inclement weather. An accident has previously occurred on this slope. The track entry at this 

mine has several dips and hills and was wet at the time of inspection. The foreman stated that 

when this ride is used, miners carry sand in the front passenger compartment and reach out and 

sand the track as needed. The hazard exist of loosing [sic] control of the personnel carrier due to 

slick track conditions, and loss of braking ability, resulting in de-railing, colliding with other 

personnel carriers and/or running over miners on foot.” Contestant’s Opposition at 2-3, quoting 

from January 21, 2014, condition or practice identified in safeguard. 

36 FMSHRC Page 2622
mandatory safety standard. 30 U.S.C. § 803(l).” Opposition at 6. Contestant then continues that, 

“when an inspector . . . issues a notice of safeguard, the inspector is, in effect, issuing a citation 

under section 104(a) for the violation of a mandatory safety standard.” Id. (italics added). 

 As a separate basis for its position, Dickenson-Russell contends that due process also 

requires that a mine operator be able to immediately contest a notice of contest upon its issuance. 

For this portion of its argument, Contestant points to Mathews v. Eldridge, 424 U.S. 319 (1976), 

for support, noting that “three distinct factors are considered: [ ] the private interest that will be 

affected by the official action; [ ] the risk of an erroneous deprivation of such interest through the 

procedures used, and the probable value, if any, of additional or substitute procedural safeguards; 

and [ ], the Government's interest, including the function involved and the fiscal and 

administrative burdens that the additional or substitute procedural requirement would entail.” 

Opposition at 7 (quoting Mathews v. Eldridge, 424 U.S. at 335). 

 Applying those factors, Contestant asserts that its affected interests are substantial: “[t]he 

instant Safeguard will require three personnel carriers to be retro-fitted with sanding devices, at 

considerable expense to the mine. [ ] These three personnel carriers are used on a daily basis. As 

a result of the Safeguard, however, all three are currently out of service and cannot be used. This 

unnecessarily and negatively impacts the mine’s operations and employees.” Opposition at 7-8, 

citations to declaration omitted). Nor, it contends can it wait to receive a citation, because there 

is no “guarantee of when a citation will be issued” and that route also exposes it to civil 

penalties. Finally, Contestant contends that allowing operators to contest notices of safeguard 

upon issuance will not unduly burden the Secretary. Opposition at 7-8. 

As noted, a particular case cited by the Contestant as authority is Affinity Coal Co. v. 

Secretary, Unpublished Order (Aug 29, 2013). That case does involve the same issue5

 but, as the 

parties well know, the decision of another administrative law judge has no precedential effect. Its 

value is limited to the persuasiveness of the reasoning in the decision upon another judge who is 

presented with a similar situation. The judge in Affinity was persuaded by the argument that a 

mine need not wait for a citation to be issued, on the basis that section 105(d) allows an operator 

to contest an order or a citation upon the view that “[a] notice of safeguard is just that – a 

violation of a provision of the Mine Act.” This Court does not share that perspective because a 

notice to provide a safeguard is plainly not a violation. Instead, it is analogous to the 

promulgation of a safety and health standard, albeit it comes into existence through a different, 

but Congressionally prescribed, procedure to address hazards with respect to the transportation 

of men and materials.6

 5

 In Affinity, five safeguard notices had been issued following a fatality and the mine then 

filed notices of contest. The Secretary took the same stance as here: the Commission’s 

jurisdiction is limited under section 105(d) and as such it does not extend to notices of contest. 

Instead, a mine must wait until a citation is issued for not complying with the safeguard notice. 

6

 Although the judge in Affinity also stated that “the Commission has jurisdiction to hear 

all disputes arising out the Mine Act . . . and make a determination upon, any proceeding 

instituted before the Commission,” the Court believes that jurisdiction must exist first and that 

instituting a proceeding does not by itself confer jurisdiction. 

 

36 FMSHRC Page 2623
In short, this Court believes that, so to speak, the other shoe must drop before litigation of 

a safeguard can commence. Accordingly, this Court cannot adopt the rationale expressed in the 

Affinity decision that “jurisdiction is conferred in the Commission because Affinity is specifically 

alleged to have violated a mandatory health or safety standard.” Affinity at 6. This is because in 

point of fact the Secretary has not made such an allegation at the point in time the safeguard 

notice is created and issued. For this reason, the Contestant’s claim that a notice to provide 

safeguard is in effect the equivalent as issuing a citation or order, does not mean that the two are 

the same. 

Although the judge in Affinity rested his conclusion on the theory that Section 105(d) 

confers jurisdiction, he also rested his view on due process grounds. The example offered by the 

judge was a mine operator having to wait twenty-two years before having the ability to challenge 

the validity of an underlying safeguard notice. However, while that recounting is a dramatic 

characterization of such an instance, it is misleading in a sense because there is nothing to 

prevent a mine operator from simply refusing to comply with a safeguard notice. Once that 

refusal happens and a citation then follows, the mine can then challenge the validity of the 

safeguard, together with the citation and the appropriateness of the penalty proposed by the 

government for that citation. Such a challenge can occur immediately after the citation is issued, 

putting all issues on the table. 

The Secretary’s Response 

The Secretary’s central contention is that the Mine Act does not give the Commission 

jurisdiction to review a safeguard notice until there has first been a subsequent citation or order 

issued in connection with that notice. The basis for its position is simple and direct, noting that 

the section of the Act addressing the Commission’s jurisdiction, section 105(d), pertains to 

“MSHA’s issuance or modification of orders, (2) MSHA’s issuance or modification of citations 

and proposed assessments of penalties; and (3) the reasonableness of the length of time that 

MSHA sets for abatement.”7

 Response at 4. Thus, the Secretary contends that as section 105(d) 

7

 The full text of section 105(d) provides: (d) If, within 30 days of receipt thereof, an 

operator of a coal or other mine notifies the Secretary that he intends to contest the issuance or 

modification of an order issued under section 104, or citation or a notification of proposed 

assessment of a penalty issued under subsection (a) or (b) of this section, or the reasonableness 

of the length of abatement time fixed in a citation or modification thereof issued under section 

104, or any miner or representative of miners notifies the Secretary of an intention to contest the 

issuance, modification, or termination of any order issued under section 104, or the 

reasonableness of the length of time set for abatement by a citation or modification thereof 

issued under section 104, the Secretary shall immediately advise the Commission of such 

notification, and the Commission shall afford an opportunity for a hearing (in accordance with 

section 554 of title 5, United States Code, but without regard to subsection (a)(3) of such 

section), and thereafter shall issue an order, based on findings of fact, affirming, modifying, or 

vacating the Secretary's citation, order, or proposed penalty, or directing other appropriate relief. 

Such order shall become final 30 days after its issuance. The rules of procedure prescribed by the 

(continued...) 

36 FMSHRC Page 2624
makes no mention of a safeguard notice, nor the provision from which it is derived, section 

314(b) of the Act, the Commission lacks jurisdiction.8

 Unlike a reviewable citation under section 

105(d), which stems from the Secretary’s allegation that a mine operator has violated the Act, or 

any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to the 

Act, the safeguard notice is analogous to a mine-specific mandatory standard. Both, the 

Secretary notes, establish required conduct, and both, when violated can be cited for failing to 

comply with such conduct.9 

Perhaps more importantly, at least from the Court’s perspective, as the Secretary notes, 

the issuance of a safeguard notice does not assert that a mine operator has committed any 

violation.10 Instead, a violation can only occur later in time, upon a mine operator’s subsequent 

failure to comply with the safeguard notice. Naturally, this also means that there is no civil 

penalty proposed either. That too only occurs upon a subsequent failure to comply with the 

safeguard notice. It is true that, upon issuance of the notice to provide a safeguard, a standard is 

created, but as with every other safety standard, no civil penalty occurs when the standard is 

created; rather it is only when the standard, however it comes into being, is thereafter violated. 

Accordingly, it is the Secretary’s contention that no Commission jurisdiction attaches until after 

the safeguard notice comes into existence and then, following that, there is issued a citation or 

order asserting that the safeguard was violated.11 

In Pocahontas Coal Company, LLC v. Secretary of Labor, 2014 WL 2809893 (June 11, 

2014) (“Pocahontas”), another administrative law judge addressed the same issue. As in the case 

7 (...continued) 

Commission shall provide affected miners or representatives of affected miners an opportunity to 

participate as parties to hearings under this section. The Commission shall take whatever action 

is necessary to expedite proceedings for hearing appeals of orders issued under section 104. 

8

 The Secretary has also taken note that the Contestant, DRC, did not cite to any specific 

provision of the Mine Act as supplying jurisdiction to the Commission in DRC’s Notice of 

Contest. Response at n.1. 

9

 Nor, the Secretary notes, is a safeguard analogous to an Order issued under section 104, 

as the latter requires withdrawal from an area of a mine, but the former does not. Response at 5. 

10 A reply was also filed by the Secretary. Much of the Secretary’s reply echoes the 

points it already made but it emphasizes that without jurisdiction first being present to hear the 

challenge the Commission cannot reach a due process claim. Jurisdiction, then, is a condition 

precedent to addressing a due process claim. 

11 If the Contestant’s action is a request for declaratory relief, which it appears to be, the 

Secretary also notes that the Commission provides such “relief only ‘where jurisdiction 

otherwise exists’ based on Section 105(d) or another one of the Mine Act’s delegations of 

authority to the Commission. Response at 8 (citing Kaiser Coal, 10 FMSHRC 1165, 1170-71 

(Sept. 1988); Drummond Company, Inc., 14 FMSHRC 661, 671-76 (May 1992)). Thus, the 

Secretary argues that jurisdiction is a condition precedent to declaratory relief. 

36 FMSHRC Page 2625
presently before this Court and in the Affinity Coal matter (supra), notices to provide safeguards 

were issued to Pocahontas pertaining to the transportation of men or materials, and the mine filed 

notices of contest for each notice. The Secretary, again as in this case, filed a motion to dismiss 

on the grounds that the Commission lacks jurisdiction to hear such a contest until after a citation 

or order is issued for a violation of the underlying safeguard notice. The judge in Pocahontas

noted that the Commission has addressed a safeguard challenge only in the context of when it 

has been accompanied by a citation alleging a violation of that safeguard.12 Reduced to its 

essential conclusion, the judge in Pocahontas concluded that the Commission’s jurisdiction is 

limited under section 105(d) of the Mine Act to particular challenges, but that challenging a 

safeguard notice itself, unaccompanied by citation or order alleging a violation of that safeguard 

notice is not one of those bases for Commission jurisdiction. The judge in Pocahontas also 

concluded that the ability for a mine to challenge a safeguard notice, once the triggering event of 

a citation or order occurs, also answers the claim that due process demands review prior to the 

allegation that the notice has been violated. In that regard, the judge noted that it “cannot create 

jurisdiction where none exists . . . [and that] less formal mechanisms, such as a request for a 

technical citation, . . . could seemingly be used to immediately contest the issue on an expedited 

basis . . . [and also that] the operator [could] bring a facial challenge [to that safeguard notice] in 

Federal District Court.” Id. at *4. Last, the judge in Pocahontas observed that “the government 

interest in flexibly and quickly addressing hazards related to the transportation of men and 

materials is an extremely compelling one.” Id. 

This Court agrees with both conclusions by the judge in Pocahontas; section 105 review 

of a challenge to a safeguard is limited to instances when a citation or order has been issued 

alleging a violation of that safeguard notice; and due process is achieved through that challenge 

mechanism.13 

As this docket contains no citations or orders, but only the notice to provide safeguard 

that was issued to the mine, the above captioned contest proceeding is DISMISSED. 

/s/ William B. Moran

William B. Moran 

Administrative Law Judge 

12 The judge also noted that it is not bound by the opinion of another administrative law 

judge and that she did not concur with the reasoning of the judge decision in Affiinity. On both 

those points, this Court shares the views of the decision in Pocahontas. 

13 It is also noted that the Court’s conclusions regarding reviewability and due process are 

fully consonant with the Commission’s most recent observations on these subjects, as reflected 

in Secretary of Labor (MSHA) v. Brody Mining, LLC, 36 FMSHRC ___, slip op., No. WEVA 

2014-82-R (Aug. 28, 2014). 

36 FMSHRC Page 2626
Distribution: 

K. Brad Oakley 

Jackson Kelly PLLC 

175 East Main Street, Suite 500 

Lexington, KY 40507 

859-255-9500 

859-281-6478 fax 

R. Henry Moore 

Jackson Kelly PLLC 

Three Gateway Center, Suite 1500 

401 Liberty Avenue 

Pittsburgh, PA 15222 

412-434-8055 

412-434-8062 fax 

Matthew N. Babington, Esq. 

U.S. Department of Labor 

Office of the Regional Solicitor 

1100 Wilson Boulevard 

22nd Floor West 

Arlington, VA 22209-3939 

36 FMSHRC Page 2627
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 1331 

PENNSYLVANIA AVENUE, NW SUITE 520N

WASHINGTON, DC 20004 

September 5, 2014 

ORDER TO SHOW CAUSE TO CARL MOORE

Before Judge Feldman: 

This matter concerns section 104(d)(1) Order No. 8169789, issued to Calvary Coal 

Corporation (“Calvary”) on May 4, 2010, for an alleged violation of the mandatory standard in 

30 C.F.R. § 75.400 that is attributable to an unwarrantable failure.1

 The cited violative condition 

concerns loose coal, coal dust, and float coal dust that accumulated along the entire distance of 

the #1 belt, measuring from a thin layer, up to five inches in depth. The order also cites 

accumulations from nine inches to 30 inches in depth at the #1 tailpiece. The order further notes 

that foreman Carl Moore stated that the accumulations had been present for two shifts, that they 

were obvious to the most casual observer, and that Moore knew of the existence of the 

accumulations. 

The Mine Safety and Health Administration’s (“MSHA”) data retrieval system reflects 

that MSHA proposed a civil penalty of $7,176.00 against Calvary for 104(d)(1) Order No. 

8169789. Calvary did not contest the order. 

1

 Section 75.400 provides: 

Coal dust, including float coal dust deposited on rock-dusted surfaces, 

loose coal, and other combustible materials, shall be cleaned up and not be 

permitted to accumulate in active workings, or on diesel- powered and electric 

equipment therein. 

30 C.F.R. § 75.400.

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

CARL MOORE, employed by 

 CALVARY COAL CORPORATION, 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. VA 2012-356 

A.C. No. 44-06791-282333A 

Mine: No. 1 

36 FMSHRC Page 2628
On May 16, 2012, the Secretary filed an assessment for civil penalty against Carl Moore, 

seeking to impose a $3,300.00 civil penalty for personal liability under section 110(c) of the 

Federal Mine Safety and Health Review Act (“Mine Act” or “the Act”), 30 U.S.C. § 820(c), for 

the violative condition cited in Order No. 8169789. Section 110(c) provides that supervisory 

mine personnel “who knowingly authorized, ordered, or carried out” a violation of a mandatory 

safety standard may be subject to personal liability. Absent strict liability, knowledge by mine 

supervisory personnel is always assumed for all violations that are attributable to an 

unwarrantable failure. Although Moore’s acknowledgement that he knew about the cited 

accumulations, which is imputed to Calvary, may provide an adequate basis for an unwarrantable 

failure designation, his knowledge alone may not be adequate to impose personal liability under 

section 110(c), absent aggravated circumstances. 

An individual is subject to personal liability under section 110(c) if he is uniquely “in a 

position to protect employee safety and health [and] fails to act on the basis of information” 

regarding the existence of a violative condition. Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 

1981), aff’d on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983). 

The issue is whether Moore’s “failure to act” in the face of his awareness of the cited 

accumulations constitutes the requisite “authoriz[ing], order[ing], or carr[ying] out” of the 

subject section 75.400 violation as contemplated by the personal liability provisions of section 

110(c) of the Act. 

In order to determine whether the Secretary has an adequate basis for seeking your 

personal liability in this case, it is necessary that you actively participate in these proceedings. 

However, to date, you have been unresponsive to my office’s inquiries, in that you have not 

provided an adequate method of reaching you by telephone, mail, or email. For example, the 

telephone number of record, which was provided by Moore and furnished to the Solicitor, has 

repeatedly indicated that its mailbox is full. Thus, my office has been unable to reach you, and 

you have failed to contact my office. 

Consequently, Carl Moore IS ORDERED TO SHOW CAUSE within 21 days of this 

Order why he should not be held in default and ordered to pay the $3,300.00 civil penalty, as 

proposed by the Secretary. In order to avoid default, Carl Moore must contact my law clerk, 

Avery Peechatka, via telephone at 202-233-4010 or email at apeechatka@fmshrc.gov, and 

demonstrate his continued desire to participate in this matter by providing a mailing address and 

a telephone number or email address at which he can be successfully reached. IT IS FURTHER 

ORDERED that Moore must make himself available for participation in a telephone conference 

with the Judge and with J. Matthew McCraken, Esq., Counsel for the Secretary, which can be 

scheduled through contact with Mr. Peechatka. 

 /s/ Jerold Feldman

Jerold Feldman 

 Administrative Law Judge 

36 FMSHRC Page 2629
Distribution: (Regular and Certified Mail) 

J. Matthew McCracken, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson 

Boulevard, 22nd Floor West, Arlington, VA 22209-2247 

Carl Moore, Calvary Coal Corporation, 16463 KY Rt. 122, Hi Hat, KY 41636 

Carl Moore, Calvary Coal Corporation, 268 East Main Street, Prestonsburg, KY 041216 

/acp 

36 FMSHRC Page 2630
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2536 

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

September 10, 2014 

ORDER STAYING PROCEEDINGS

These cases are before me on Notices of Contest filed by Affinity Coal Company, LLC, 

pursuant to Section 105(d) of the Federal Mine Safety and Health. These contests are directed 

not at a particular citation or order but, rather, at five written notices to provide safeguard issued 

by MSHA pursuant to Section 314(b) of the Act. For reasons that follow, these cases are 

STAYED until the Commission rules on the issue of whether the Commission judges have 

jurisdiction to undertake an independent review of notices to provide safeguard issued pursuant 

to section 314(b) of the Mine Act. 

On April 15, 2013 the Secretary filed motions to dismiss these five contests. The 

Secretary, in each of the motions to dismiss, argued that, in the absence of a citation or order 

issued for violation of a safeguard, the Commission lacks jurisdiction under the Mine Act to hear 

contests of notices to provide safeguard. Subsequently, on April 25, 2013, Contestant filed a 

statement in opposition to the motions, arguing that notices to provide safeguard should be 

treated as section 104(a) citations and, as a result, section 105(d) of the Act confers jurisdiction 

on the Commission to hear independent contests of notices to provide safeguard. Further, 

Contestant argued that due process concerns demand that mine operators be able to contest 

notices to provide safeguard at the time they are issued, and not have to wait until a citation or 

order is issued for violation of the safeguard. On August 29, 2013 Judge William Steele denied 

the Secretary’s motion and found that section 105(d) of the Act granted the Commission 

jurisdiction to hear contests of notices to provide safeguard prior to the issuance of a citation or 

AFFINITY COAL COMPANY, LLC, 

Contestant, 

v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

Respondent. 

 CONTEST PROCEEDINGS 

Docket No. WEVA 2013-700-R 

Safeguard No. 3575542; 02/28/2013 

Docket No. WEVA 2013-701-R 

Safeguard No. 3575543; 02/28/2013 

Docket No. WEVA 2013-702-R 

Safeguard No. 3575544; 02/28/2013 

Docket No. WEVA 2013-703-R 

Safeguard No. 3575545; 02/28/2013 

Docket No. WEVA 2013-704-R 

Safeguard No. 8155075; 03/04/2013 

Mine: Affinity Mine 

Mine ID: 46-08878 

36 FMSHRC Page 2631
order for an alleged violation of the safeguard. Affinity Coal Co., LLC, Unpublished Order 

Denying Motion to Dismiss dated August 29, 2013, Docket No. WEVA 2013-700-R et al. (ALJ). 

On June 11, 2014 this court dismissed a separate, but similar matter. Pocahontas Coal 

Co., 36 FMSHRC __, slip op. (Docket Nos. WEVA 2014-642-R, WEVA 2014-646-R through 

679-R) (June 11, 2014) (ALJ). In Pocahontas, the parties raised essentially identical arguments to 

those raised in the instant proceeding. There I found that, while the Commission had 

acknowledged a mine operator's right to contest the validity of a safeguard in the context of 

contest to a citation issued pursuant to a violation of the underlying safeguard, it had not 

addressed the question of whether it has jurisdiction to hear a contest of a notice to provide 

safeguard in the context of a separate proceeding prior to the issuance of a citation or order for a 

violation of the safeguard. Id. (citing Southern Ohio Coal Co., 14 FMSHRC 1 (Jan. 1992)). In 

dismissing the cases I relied upon the absence of any legal authority to hear contests of notices to 

provide safeguard within the context of a dedicated proceeding, the unique nature of safeguards 

that prevents them from being considered a citation or order, other avenues which the contestant 

could have utilized to properly challenge the notices to provide safeguard, and the current 

protections in place which negate any due process concerns. Id. On July 16, 2014 the 

Commission granted Pocahontas’ petition for discretionary review. Clearly the decision issued in 

Affinity is directly opposite the decision in Pocahontas. Additionally, in the time since these 

cases were reassigned at least one Commission judge has dismissed a similarly situated matter 

for many of the same reasons cited in my June 11th order. Dickenson-Russell Coal Co., 36 

FMSHRC __, slip op. (Docket No. VA 2014-163-R) (Sept. 3, 2014) (ALJ). 

 On August 14, 2014 these five cases were reassigned to this court.1 The Secretary has 

represented that, as of August 28, 2014, no citations or orders have been issued for violations of 

the safeguards that are contained in these cases. The reassignment of these cases presents a novel 

issue, namely that an order finding jurisdiction is presently in place, however the currently 

presiding judge believes that there is no jurisdiction and these cases should not be before the 

Commission. Judge Steele’s determination that jurisdiction exists directly contradicts my finding 

in the similarly situated Pocahontas case. While the instant proceeding involves Affinity Coal 

Company, and my June 11th order related to Pocahontas Coal Company, the two entities are one 

and the same, sharing the same mine identification number. While the court recognizes that 

Judge’s Steele order remains in place, it disagrees with his ultimate finding and, in an effort to 

avoid confusion by issuing a contradictory order, the court believes that the question of 

jurisdiction should be stayed until the Commission issues an order in the Pocahontas case 

presently before it. 

ORDER 

Consequently, these cases are STAYED until the Commission issues a decision in the 

Pocahontas case, after which time, this matter will either be dismissed or set for hearing. 

Further, should the Secretary believe it necessary, he may request that this matter be put before 

the Commission on interlocutory review. 

 1

 Judge Steele retired and his cases have been reassigned to other Commission judges. 

36 FMSHRC Page 2632
The parties are ORDERED to notify the Court immediately should the status of these 

cases change or the Pocahontas case is decided. 

 /s/ Margaret A. Miller

 Margaret A. Miller 

 Administrative Law Judge 

Distribution: 

Benjamin D. Chaykin and Robert Wilson, U.S. Department of Labor, Office of the Regional 

Solicitor, 1100 Wilson Blvd., 22nd Floor, West, Arlington, VA 22209-2247 

Jason M. Nutzman, Dinsmore & Shohl, LLP, Huntington Square, 900 Lee Street, Suite 600, 

Charleston, WV 25301 

Robert H. Beatty, Jr., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310, Morgantown, 

WV 26501 

36 FMSHRC Page 2633