i

September 2011

TABLE OF CONTENTS

COMMISSION DECISIONS AND ORDERS

09-07-2011 TWENTYMILE COAL, LLC WEST2011-450 Page 2042

09-07-2011 BLACK MOUNTAIN INDUSTRIAL

MINERALS, LLC

WEST2011-617-M Page 2045

09-08-2011 ALLIED CUSTOM GYPSUM CENT2011-670-M Page 2048

09-08-2011 ROBERT’S COFFEE & VENDING

SERVICE, LLC

CENT2011-671 Page 2051

09-08-2011 NELSON QUARRIES, INC. CENT2011-672-M Page 2054

09-08-2011 DOLET HILLS LIGNITE CO., LLC CENT2011-822 Page 2057

09-08-2011 MERIDIAN AGGREGATES COMPANY,

LP

CENT2011-861-M Page 2060

08-08-2011 BLACK PANTHER MINING, LLC LAKE2011-698 Page 2063

09-08-2011 GROVE CITY MATERIALS PENN2011-352 Page 2066

09-08-2011 G & R MINERAL SERVICES, INC. SE2011-323-M Page 2070

09-08-2011 BANNER BLUE COAL COMPANY VA2011-303 Page 2073

09-08-2011 LEHIGH SOUTHWEST CEMENT CO. WEST2011-1151-M Page 2077

09-08-2011 CEMEX CALIFORNIA CEMENT, LLC WEST2011-644-M Page 2080

09-08-2011 CLEAN HARBORS ENVIRONMENTAL

SERVICES, INC.

WEST2011-748-M Page 2083

09-08-2011 ASH GROVE CEMENT COMPANY WEST2011-768-M Page 2087

09-08-2011 KEYSTONE SERVICE INDUSTRIES, INC. WEVA2011-1229 Page 2090

09-08-2011 HINKLE TRUCKING, INC. WEVA2011-1595 Page 2093

09-08-2011 CHIEF MINING, INC. WEVA2011-1616 Page 2096

09-09-2011 HIGMAN SAND & GRAVEL, INC. CENT2011-311-M Page 2099

09-09-2011 BYHOLT, INC. LAKE2010-903-M Page 2102

09-09-2011 STERZINGER CONSTRUCTION LAKE2011-297-M Page 2106
ii

09-09-2011 KEOKEE MINING LLC VA2011-225 Page 2109

09-09-2011 DRUMLUMMON GOLD CORPORATION WEST2011-566-M Page 2113

09-15-2011 CON-AGG OF MO, LLC CENT2011-193-M Page 2117

09-15-2011 H&D MINING, INC. KENT2011-1410 Page 2121

09-15-2011 BIG RIVER MINING, LLC WEVA2011-559 Page 2126

09-15-2011 CARTER ROAG COAL COMPANY WEVA2011-560 Page 2132

09-26-2011 LUMINANT MINING COMPANY, LLC CENT2011-935-M Page 2135

09-26-2011 JASON FALK, employed by

LAFARGE UTICA, INC.

LAKE2011-593-M Page 2138

09-26-2011 PARSONS ELECTRIC COMPANY, INC. LAKE2011-733-M Page 2142

09-26-2011 BIG RIDGE, INC. LAKE2011-812-M Page 2146

09-26-2011 EIGHTY FOUR MINING COMPANY PENN2009-326 Page 2150

09-26-2011 INDUSTRIAL MINERALS, INC. SE2008-671-M Page 2153

09-26-2011 CARBO CERAMICS, INC. SE2009-381-M Page 2156

09-26-2011 JACKSON ENTERPRISES, INC. SE2009-420-M Page 2160

09-26-2011 VULCAN CONSTRUCTION

MATERIALS, LP

SE2009-845-M Page 2164

09-26-2011 SCABTRON WEST2011-1001-M Page 2167

09-26-2011 ALPHA EXPLOSIVES WEST2011-1002-M Page 2170

09-26-2011 ROBINSON NEVADA MINING CO. WEST2011-1154-M Page 2173

09-26-2011 H & B CRUSHING, LLC WEST2011-874-M Page 2176

09-26-2011 TROY MINE, INC. WEST2011-929-M Page 2181

09-26-2011 FERRELL EXCAVATING CO., INC. WEVA2011-1900-M Page 2184

09-26-2011 TEN-MILE COAL COMPANY, INC. WEVA2011-2107 Page 2188

09-28-2011 J & A TRUCKING WEVA2009-1002 Page 2192

09-28-2011 INR-WV OPERATING, LLC WEVA2010-1421 Page 2197

09-30-2011 JET MATERIALS CENT2010-702-M Page 2202
iii

ADMINISTRATIVE LAW JUDGE DECISIONS

09-02-2011 PINNACLE MINING COMPANY WEVA2011-1758-R Page 2207

09-08-2011 BIG RIDGE, INC LAKE 2008-436 Page 2238

09-20-2011 JIM WALTER RESOURCES, INC. SE2009-267-R Page 2254

09-21-2011 CAM MINING, LLC KENT2009-444 Page 2261

09-23-2011 USA CLEANING SERVICE &

BUILDING MAINTENANCE

EAJ2011-01 Page 2264

09-23-2011 CONNOLLY-PACIFIC COMPANY WEST 2011-1064-RM Page 2270

09-28-2011 DANA MINING COMPANY OF

PENNSYLVANIA, LLC

PENN2009-617 Page 2295

09-28-2011 ROXCOAL, INC. PENN2009-667 Page 2303

09-28-2011 THOMAS BEWAK vs.

ALASKA MECHANICAL, INC.

WEST 2008-161-DM Page 2337

09-29-2011 CA SECRETARY OF LABOR o/b/o

BURDETTE BILLINGS vs.

PROPPANT SPECIALISTS, LLC

LAKE2011-855-DM Page 2340

ADMINISTRATIVE LAW JUDGE ORDERS

09-07-2011 HIDDEN SPLENDOR RESOURCES, INC. WEST2011-896 Page 2345

09-09-2011 MAMMOTH COAL CO. WEVA2009-888-R Page 2348

09-21-2011 AMERICAN COAL COMPANY LAKE2008-666 Page 2352

09-22-2011 GRAND EAGLE MINING, INC. KENT2009-1118 Page 2355
iv

Review was granted in the following cases during the month of September 2011:

Secretary of Labor, MSHA v. Twentymile Coal Company, Docket No. WEST 2009-241, et al. 

(Judge Manning, August 15, 2011)

Secretary of Labor, MSHA v. Long Branch Energy, Docket No. WEVA 2010-467, et al. (Judge

McCarthy, August 22, 2011)

Secretary of Labor, MSHA v.Webster County Coal, LLC., Docket No. KENT 2009-422, et al. 

(Judge Lesnick, Interlocutory Review of Order Denying Motion to Dismiss, issued September 28,

2010- unpublished)

Secretary of Labor, MSHA v. Jet Materials, Docket No. CENT 2010-702, et al. (Judge Gill,

August 24, 2011 - unpublished Default Order)

There were no cases in which Review was denied during the month of September 2011.
COMMISSION DECISIONS AND ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 7, 2011

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. WEST 2011-450

v. : A.C. No. 05-03836-230190

:

TWENTYMILE COAL, LLC :

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On January 4, 2011, the Commission received from 

Twentymile Coal, LLC, a motion by counsel seeking to reopen a penalty assessment that had

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

§ 815(a). 

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

33 FMSHRC Page 2042
Having reviewed the facts and circumstances of this case, the operator’s request, and the

Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative

Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. 

§ 2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2043
Distribution:

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1340

401 Liberty Avenue

Pittsburgh, PA 15222

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

 U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2044
1

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

consolidate docket numbers WEST 2011-617-M and WEST 2011-618-M, both captioned Black

Mountain Industrial Minerals, LLC, and both involving similar procedural issues. 29 C.F.R.

§ 2700.12.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

 September 7, 2011

SECRETARY OF LABOR, : Docket No. WEST 2011-617-M

 MINE SAFETY AND HEALTH : A.C. No. 26-02228-236973

 ADMINISTRATION (MSHA) :

 : Docket No. WEST 2011-618-M

v. : A.C. No. 26-02228-239871

 :

BLACK MOUNTAIN INDUSTRIAL :

 MINERALS, LLC : 

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

ORDER

BY THE COMMISSION:

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

§ 801 et seq. (2006) (“Mine Act”). On February 15, 2011, the Commission received requests by

Black Mountain Industrial Minerals, LLC, seeking to reopen penalty assessments that had

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

§ 815(a).1 On February 28, 2011, the Commission received a response from the Secretary of

Labor stating that she does not oppose the requests to reopen the assessments.

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

33 FMSHRC Page 2045
by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

Having reviewed the facts and circumstances of this case, the operator’s requests, and the

Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative

Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. 

§ 2700.28.

 /s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2046
Distribution:

Fionn O’Neill

Director of Operations

Black Mountain Industrial Minerals, LLC

50 Oak Court, Suite 210

Danville, CA 94526

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2047
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

 September 8, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. CENT 2011-670-M

v. : A.C. No. 41-04758-249511

:

ALLIED CUSTOM GYPSUM :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On May 5, 2011, the Commission received from Allied

Custom Gypsum (“Allied”) a motion seeking to reopen a penalty assessment that had become a

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

The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

Having reviewed the facts and circumstances of this case, the operator’s request, and the

Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative

33 FMSHRC Page 2048
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. §

2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2049
Distribution:

Justin Molitor

Allied Custom Gypsum

1550 Double Drive

Norman, OK 73069 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2050
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

 September 8, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. CENT 2011-671

v. : A.C. No. 41-02632-244445

:

ROBERT’S COFFEE & VENDING :

SERVICE, LLC :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On May 6, 2011, the Commission received from Robert’s

Coffee & Vending Service, LLC (“Robert’s Coffee”) a motion seeking to reopen a penalty

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

Mine Act, 30 U.S.C. § 815(a). The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

Having reviewed the facts and circumstances of this case, the operator’s request, and the

Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative

33 FMSHRC Page 2051
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. §

2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2052
Distribution:

Robert Crawley

Robert’s Coffee & Vending Service, LLC

343 Johnny Clark Road

Longview, TX 75603 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2053
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

 September 8, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. CENT 2011-672-M

v. : A.C. No. 14-01277-246620

:

NELSON QUARRIES, INC. :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On May 6, 2011, the Commission received from Nelson

Quarries, Inc. (“Nelson Quarries”) a motion seeking to reopen a penalty assessment that had

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

30 U.S.C. § 815(a).

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

The record indicates that the proposed assessment was delivered on February 22, 2011,

and became a final order of the Commission on March 24, 2011. MSHA received timely full

payment on March 11, 2011. Nelson Quarries asserts it intended to contest the citation since it

has evidence of meeting regulation requirements, but the penalty was inadvertently paid. The

33 FMSHRC Page 2054
motion to reopen was filed on April 29, 2011. The Secretary does not oppose the request to

reopen.

Having reviewed Nelson Quarries’ request and the Secretary’s response, in the interests

of justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for

further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.

Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for

assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2055
Distribution:

Paul M. Nelson

Nelson Quarries, Inc. 

P.O. Box 334

Jasper, MO 64755

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2056
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

 September 8, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. CENT 2011-822

v. : A.C. No. 16-01031-246092

:

DOLET HILLS LIGNITE CO., LLC :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On June 6, 2011, the Commission received from Dolet Hills

Lignite Co., LLC (“Dolet Hills”) a motion made by counsel seeking to reopen a penalty

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

Mine Act, 30 U.S.C. § 815(a). The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

Having reviewed the facts and circumstances of this case, the operator’s request, and the

Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative

33 FMSHRC Page 2057
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. §

2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2058
Distribution:

Mark E. Heath, Esq. 

Spilman, Thomas & Battle, PLLC

300 Kanawha Blvd. East 

P.O. Box 273

Charleston, WV 25321

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2059
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

 September 8, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. CENT 2011-861-M

v. : A.C. No. 34-00460-249297

:

MERIDIAN AGGREGATES COMPANY, LP :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On June 21, 2011, the Commission received from Meridian

Aggregates Company, LP (“Meridian”) a motion seeking to reopen a penalty assessment that had

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

30 U.S.C. § 815(a).

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

33 FMSHRC Page 2060
The record indicates that the proposed assessment was delivered on March 22, 2011, and

became a final order of the Commission on April 21, 2011. MSHA received a timely payment

for the uncontested penalties. Meridian asserts it mailed the contest form on March 25, 2011 and

was not aware it was not received by MSHA until it received the delinquency notice. The

motion to reopen was filed within 30 days of receiving the delinquency notice. The Secretary

does not oppose the request to reopen. 

Having reviewed Meridian’s request and the Secretary’s response, in the interests of

justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for

further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.

Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for

assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2061
Distribution:

Penni Carpenter, HR/Safety Representative

Meridian Aggregates Company, LP

8521 Hwy 271 N

Powderly, TX 75473

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2062
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

 September 8, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. LAKE 2011-698

v. : A.C. No. 12-02394-245315

:

BLACK PANTHER MINING, LLC :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On May 27, 2011, the Commission received from Black

Panther Mining, LLC (“Black Panther”) a motion made by counsel seeking to reopen a penalty

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

Mine Act, 30 U.S.C. § 815(a). The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

Having reviewed the facts and circumstances of this case, the operator’s request, and the

Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative

33 FMSHRC Page 2063
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. §

2700.28.

 /s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2064
Distribution:

Andrew J. Miroff, Esq. 

Ice Miller, LLP

One American Square, Suite 2900

Indianapolis, IN 46282

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2065
1 The request to reopen was filed by David C. Lewetag, who identifies himself as a

consultant for Grove City. Commission Procedural Rule 3 provides that, in order to practice

before the Commission, a person must either be an attorney or fall in to one of the categories in

Rule 3(b), which includes parties, representatives of miners, an “owner, partner, officer or

employee” of certain parties, or “[a]ny other person with the permission of the presiding judge or

the Commission.” 29 C.F.R. § 2700.3(b). It is unclear whether Mr. Lewetag satisfied the

requirements of Rule 3 when he filed the request on behalf of Grove City. We have determined

that, despite this, we will consider the merits of the request in this instance. However, in any

future proceeding before the Commission, including further proceedings in this case, Mr.

Lewetag may represent Grove City only if he demonstrates to the Commission or the presiding

judge that he fits within one of the categories set forth in Rule 3(b)(1)-(3) or seeks permission to

practice before the Commission or the judge pursuant to Rule 3(b)(4). Otherwise, Grove City

must be represented by an attorney or by an owner, partner, officer, or employee.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

 September 7, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. PENN 2011-352

v. : A.C. No. 36-09697-242921

:

GROVE CITY MATERIALS :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On May 19, 2011, the Commission received from Grove City

Materials (“Grove City”) a motion seeking to reopen a penalty assessment that had become a

final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).1

The Secretary does not oppose the request to reopen. 

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

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

33 FMSHRC Page 2066
penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

33 FMSHRC Page 2067
Having reviewed the facts and circumstances of this case, the operator’s request, and the

Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative

Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. §

2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2068
Distribution:

David C. Lewetag

Grove City Materials 

161 Plain Grove Road 

Slippery Rock, PA 16057

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2069
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

 September 8, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. SE 2011-323-M 

v. : A.C. No. 01-00003-240259 ACR

:

G & R MINERAL SERVICES, INC. :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On February 8, 2011, the Commission received from G & R

Mineral Services, Inc. (“G&R”) a motion made by counsel seeking to reopen a penalty

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

Mine Act, 30 U.S.C. § 815(a). The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

Having reviewed the facts and circumstances of this case, the operator’s request, and the

Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative

33 FMSHRC Page 2070
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. §

2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2071
Distribution:

A. Joe Peddy, Esq., Tamera K. Erskine, Esq. 

Smith, Spires & Peddy, PC

2015 Second Avenue North, Suite 200

Birmingham, AL 35203

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2072
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

 September 8, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. VA 2011-303

v. : A.C. No. 44-06685-241015

:

BANNER BLUE COAL COMPANY :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On March 22, 2011, the Commission received from Banner

Blue Coal Company (“Banner Blue”) a motion made by counsel seeking to reopen a penalty

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

Mine Act, 30 U.S.C. § 815(a).

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

33 FMSHRC Page 2073
The record indicates that the proposed assessment was delivered on December 17, 2010,

and became a final order of the Commission on January 18, 2011. MSHA’s payment processing

center in Saint Louis, MO received a payment for the uncontested amount, along with a marked

contest form indicating Banner Blue’s intent to contest the citations at issue, on January 20,

2011. The payment center forwarded the contest form to the MSHA Civil Penalty Compliance

Office in Arlington, VA, where it was processed as a late contest. Banner Blue’s counsel further

asserts that it is in the process of implementing new procedures for processing MSHA forms. 

The Secretary does not oppose the request to reopen. The Secretary’s position is based solely on

the fact that the contest was submitted only two days late.

33 FMSHRC Page 2074
Having reviewed Banner Blue’s request and the Secretary’s response, in the interests of

justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for

further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.

Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for

assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

 /s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2075
Distribution:

Lorna M. Waddell, Esq. 

Dinsmore & Shohl, LLP

215 Don Knotts Boulevard, Suite 310

Morgantown, WV 26501

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2076
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

 September 8, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. WEST 2011-1151-M

v. : A.C. No. 04-00196-252210

:

LEHIGH SOUTHWEST CEMENT CO. :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On June 22, 2011, the Commission received from Lehigh

Southwest Cement Co. (“Lehigh”) a motion seeking to reopen a penalty assessment that had

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

30 U.S.C. § 815(a). The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

Having reviewed the facts and circumstances of this case, the operator’s request, and the

Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative

33 FMSHRC Page 2077
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. §

2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2078
Distribution:

Brian Bigley, Safety Manager

Lehigh Southwest Cement Company

13573 E Tehachapi Boulevard 

Tehachapi, CA 93561

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2079
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

 September 8, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. WEST 2011-644-M

v. : A.C. No. 04-05701-243003

:

CEMEX CALIFORNIA CEMENT, LLC :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On February 18, 2011, the Commission received from Cemex

California Cement, LLC (“Cemex”) a motion made by counsel seeking to reopen a penalty

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

Mine Act, 30 U.S.C. § 815(a). The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

Having reviewed the facts and circumstances of this case, the operator’s request, and the

Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative

33 FMSHRC Page 2080
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. §

2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2081
Distribution:

Gwendolyn K. Nightengale, Esq. 

Ogletree, Deakins, Nash, Smoak & Stewart, PC

2400 N Street, NW, 5th Floor

Washington, DC 20037

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2082
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

 September 8, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. WEST 2011-748-M

v. : A.C. No. 02-00137-242182

:

CLEAN HARBORS ENVIRONMENTAL :

SERVICES, INC. :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On March 17, 2011, the Commission received from Clean

Harbors Environmental Services, Inc. (“Clean Harbors”) a motion made by counsel seeking to

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

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

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

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

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

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

33 FMSHRC Page 2083
We have held, however, that in appropriate circumstances, we possess jurisdiction to

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

The record indicates that the proposed assessment was delivered on January 3, 2011, and

became a final order of the Commission on February 2, 2011. Clean Harbors asserts that the

proposed assessment was addressed to a former employee, which delayed the delivery to the

general counsel. Clean Harbors further states that its outside counsel served what the general

counsel mistakenly believed to be a timely Notice of Contest on February 14, 2011. Clean

Harbors filed a motion to reopen within 30 days of receiving a delinquency letter from MSHA. 

The Secretary does not oppose the request to reopen. The Secretary notes, however, that all

proposed assessments are mailed to the address of record on the Contractor ID Report. It is

Clean Harbors’ responsibility to keep MSHA informed of changes in its address of record and

contact names on its legal identity report. 

33 FMSHRC Page 2084
Having reviewed Clean Harbors’ request and the Secretary’s response, in the interests of

justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for

further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.

Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for

assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2085
Distribution:

Dale B. Rycraft, Jr., Esq.

Gordon Silver, Attorneys At Law

One East Washington Street, Suite 400

Phoenix, AZ 85004

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2086
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

 September 8, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. WEST 2011-768-M

v. : A.C. No. 45-00359-243596

:

ASH GROVE CEMENT COMPANY :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On March 21, 2011, the Commission received from Ash Grove

Cement Company (“Ash Grove”) a motion made by counsel seeking to reopen a penalty

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

Mine Act, 30 U.S.C. § 815(a). The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of cause for a

failure to timely respond, the case may be reopened and appropriate proceedings on the merits

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

Having reviewed the facts and circumstances of this case, the operator’s request, and the

Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative

33 FMSHRC Page 2087
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. §

2700.28.

 /s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2088
Distribution:

Denise E. Giraudo, Esq. 

Ogletree, Deakins, Nash, Smoak, & Stewart, PC

2400 N Street NW, 5th Floor

Washington, DC 20037

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2089
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

 September 8, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. WEVA 2011-1229

v. : A.C. No. 46-03444-241264

:

KEYSTONE SERVICE INDUSTRIES, INC. :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On March 21, 2011, the Commission received from Keystone

Service Industries, Inc. (“Keystone”) a motion made by counsel seeking to reopen a penalty

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

Mine Act, 30 U.S.C. § 815(a). The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

Having reviewed the facts and circumstances of this case, the operator’s request, and the

Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative

33 FMSHRC Page 2090
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. §

2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2091
Distribution:

Carol Ann Marunich, Esq. 

Dinsmore & Shohl, LLP

215 Don Knotts Blvd., Suite 310

Morgantown, WV 26501

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2092
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

 September 8, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. WEVA 2011-1595

v. : A.C. No. 46-05823-244729 ROE

:

HINKLE TRUCKING, INC. :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On April 27, 2011, the Commission received from Hinkle

Trucking, Inc. (“Hinkle”) a motion seeking to reopen a penalty assessment that had become a

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

The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

Having reviewed the facts and circumstances of this case, the operator’s request, and the

Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative

33 FMSHRC Page 2093
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. §

2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2094
Distribution:

Gary L. Hinkle, President

Hinkle Trucking, Inc. 

HC 78, Box 99

Riverton, WV 26814 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2095
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

 September 8, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. WEVA 2011-1616

v. : A.C. No. 46-08577-244845

:

CHIEF MINING, INC. :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On May 3, 2011, the Commission received from Chief Mining,

Inc. (“Chief Mining”) a motion seeking to reopen a penalty assessment that had become a final

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

Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

Having reviewed the facts and circumstances of this case, the operator’s request, and the

Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative

33 FMSHRC Page 2096
Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. §

2700.28.

 /s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2097
Distribution:

James F. Bowman

Chief Mining, Inc.

P.O. Box 99

Midway, WV 25878

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2098
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 8, 2011

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 : Docket No. CENT 2011-311-M

v. : A.C. No. 13-01885-226155 -02

 :

HIGMAN SAND & GRAVEL, INC. :

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

ORDER

BY THE COMMISSION:

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

§ 801 et seq. (2006) (“Mine Act”). On January 6, 2011, the Commission received from 

Higman Sand & Gravel, Inc. a letter from the company’s director of mine safety and permitting

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

pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). On January 21, 2011, the

Commission received a response from the Secretary of Labor stating that she does not oppose the

request to reopen the assessment.

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

33 FMSHRC Page 2099
Having reviewed the facts and circumstances of this case, the operator’s request, and the

Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative

Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. 

§ 2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2100
Distribution:

Rick Lemmon

Higman Sand & Gravel, Inc.

16485 Hgwy. 12

P.O. Box 109

Akron, IA 51001

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2101
1

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

consolidate docket numbers LAKE 2010-903-M and LAKE 2010-904-M, both captioned Byholt,

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

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 8, 2011

SECRETARY OF LABOR, : Docket No. LAKE 2010-903-M

 MINE SAFETY AND HEALTH : A.C. No. 20-02909-208139

 ADMINISTRATION (MSHA) :

 : Docket No. LAKE 2010-904-M

v. : A.C. No. 20-02909-211111

 :

BYHOLT, INC. :

 

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

ORDER

BY THE COMMISSION:

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

§ 801 et seq. (2006) (“Mine Act”). On August 17, 2010, the Commission received motions by

counsel from Byholt, Inc. (“Byholt”) requesting to reopen penalty assessments that had become 

final orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).1 

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

33 FMSHRC Page 2102
2

 In considering whether an operator has unreasonably delayed in filing a motion to

reopen a final Commission order, we find relevant the amount of time that has passed between

an operator’s receipt of a delinquency notice and the operator’s filing of its motion to reopen. 

See, e.g., Left Fork Mining Co., 31 FMSHRC 8, 10-11 (Jan. 2009).

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

On January 7, 2010, and February 11, 2010, the Department of Labor’s Mine Safety and

Health Administration (“MSHA”) issued Proposed Assessment No. 000208139 and Proposed

Assessment No. 000211111, respectively, to Byholt. On March 31, 2010, MSHA issued a 

notice to Byholt indicating that Assessment No. 000208139 had become final and now was

delinquent. On May 6, 2010, MSHA issued another notice to Byholt indicating that Assessment 

No. 000211111 was delinquent.

In its motion to reopen, the President of Byholt explains that it did not file timely contests

because it had no experience contesting violations previously. Byholt asserts that by the time it

sought experienced counsel, the time for contest had passed. The President further states with

respect to Assessment No. 000208139 that the operator was under the “mistaken[] belief that all

of the [section] 104(d) citations/orders needed to be contested together and in waiting for the

other three citations to be assessed, we missed the deadline.” Byholt Aff.

The Secretary opposes reopening, contending that the operator’s professed

misunderstanding of MSHA’s contest procedures is particularly inexcusable because the

instructions outlining how to contest are contained on the proposed assessment itself. She also

submits that ignorance of the rules and the law is not a permissible ground for reopening under

Rule 60(b)(1). The Secretary also contends that Byholt failed to explain why it waited over four

months in Assessment No. 000208139 (Docket No. LAKE 2010- 903-M) and three months in

Assessment No. 000211111 (Docket No. LAKE 2010-904-M) to bring motions to reopen after it

had received delinquency notices. The Secretary also provides that because the operator had not

responded to the delinquency notices, both matters were referred to the U.S. Department of

Treasury for collection.

Having reviewed Byholt’s requests to reopen and the Secretary’s responses thereto, we

determine that the operator has failed to provide a sufficient basis for the Commission to reopen

the penalty assessment. The operator’s contention that it lacked experience to timely contest the

proposed assessments lacks sufficient detail and does not provide adequate grounds for

reopening. Significantly, Byholt has also failed to explain why it delayed approximately three

and four months in responding to the delinquency notices sent by MSHA. Pinnacle Mining Co.,

30 FMSHRC 1071, 1073-74 (Dec. 2008).2

Accordingly, we hereby deny without prejudice Byholt’s request to reopen. Eastern

Assoc. Coal, LLC, 30 FMSHRC 392, 394 (May 2008); FKZ Coal Inc., 29 FMSHRC 177, 178

(Apr. 2007); Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). The words “without prejudice”

mean that Byholt may submit another request to reopen the Assessment Nos. 000208139 and

33 FMSHRC Page 2103
3

 If Byholt submits another request to reopen, it must establish good cause for not

contesting the proposed penalties within 30 days from the date it received the assessment from

MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, the existence of “good

cause” may be shown by a number of different factors including mistake, inadvertence, surprise,

or excusable neglect on the part of the party seeking relief, or the discovery of new evidence, or

fraud, misrepresentation, or other misconduct by the adverse party. Byholt should include a full

description of the facts supporting its claim that its mistake or other problem prevented it from

responding within the time limits provided in the Mine Act, as part of its request to reopen. 

Byholt should also submit copies of supporting documents with its request to reopen. Byholt

should further explain and document in similar detail why it delayed in responding to MSHA’s

delinquency notice. The Commission would specifically expect Byholt to provide verified and

detailed affidavits and documentation substantiating what it did after receiving the notices of

contest and the notices of delinquency and why it delayed in seeking reopening. 

000211111.3

 Any amended or renewed request by the operator to reopen these assessments must

be filed within 30 days of this order. Any such request filed after that time will be denied with

prejudice.

 /s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2104
Distribution:

Nichelle Young, Esq.

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

4740 Corridor Place, Suite D

Beltsville, MD 20705

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2105
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 9, 2011

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 : Docket No. LAKE 2011-297-M

v. : A.C. No. 21-02848-233783

 :

STERZINGER CONSTRUCTION :

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

ORDER

BY THE COMMISSION:

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

§ 801 et seq. (2006) (“Mine Act”). On January 20, 2011, the Commission received from

Sterzinger Construction (“Sterzinger”) a letter from the owner seeking to reopen a penalty

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

the Mine Act, 30 U.S.C. § 815(a).

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

33 FMSHRC Page 2106
On September 29, 2010, the Department of Labor’s Mine Safety and Health

Administration (“MSHA”) issued Proposed Penalty Assessment No. 000233783 to Sterzinger

and attempted to deliver it through Federal Express. The record indicates that the proposed

assessment was not received by Sterzinger at that time and that a second attempt through the

United States Postal Service was also unsuccessful. Sterzinger alleges that it later learned that

the assessment had become final and contacted MSHA, which faxed it a copy of the assessment

on or about December 15, 2010. 

The Secretary states that she does not oppose the reopening of the proposed penalty

assessment and confirms that its two delivery attempts to Sterzinger were unsuccessful.

Having reviewed Sterzinger’s request and the Secretary’s response, we conclude that the

proposed penalty assessment has not become a final order of the Commission because it was not

received by Sterzinger. Accordingly, we deny the request to reopen as moot and remand this

matter to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act

and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. The Secretary shall file a petition

for assessment of penalty within 45 days of the date of its contest. See 29 C.F.R. §§ 2700.26

and 2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2107
Distribution:

Tom Sterzinger

Sterzinger Construction

3273 290 Ave.

Taunton, MN 56291

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris,

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2108
1

 The request to reopen was sent by Michael D. Clements, who states that he represents

Keokee. Commission Procedural Rule 3 provides that, in order to practice before the

Commission, a person must either be an attorney or fall into one of the categories in 

Rule 3(b), which include parties, representatives of miners, an “owner, partner, officer or

employee” of certain parties, or “[a]ny other person with the permission of the presiding judge or

the Commission.” 29 C.F.R. § 2700.3(b). It is unclear whether Mr. Clements satisfied the

requirements of Rule 3 when he filed the operator’s request. We have determined that, despite

this, we will consider the merits of the operator’s request in this instance. However, in any

future proceeding before the Commission, including further proceedings in this case, Mr.

Clements must demonstrate to the Commission or presiding judge that he fits within one of the

categories set forth in Rule 3(b)(1)-(3) or seek permission to practice before the Commission or

judge pursuant to Rule 3(b)(4).

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 7, 2011

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 : Docket No. VA 2011-225

v. : A.C. No. 44-06947-240206

 :

KEOKEE MINING LLC :

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

ORDER

BY THE COMMISSION:

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

§ 801 et seq. (2006) (“Mine Act”). On January 25, 2011, the Commission received a motion by 

Keokee Mining LLC (“Keokee”)1 seeking to reopen a penalty assessment that had become a

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

On February 18, 2011, the Commission received a response from the Secretary of Labor stating

that she does not oppose the request to reopen the assessment.

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

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

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

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

33 FMSHRC Page 2109
We have held, however, that in appropriate circumstances, we possess jurisdiction to

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

33 FMSHRC Page 2110
Having reviewed the facts and circumstances of this case, Keokee’s request, and the

Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative

Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. 

§ 2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2111
Distribution:

Michael D. Clements

Keokee Mining, LLC

408 A Manor Drive

Kingsport, TN 37660

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2112
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 9, 2011

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 : Docket No. WEST 2011-566-M

v. : A.C. No. 24-01079-239191 Y035 

 :

DRUMLUMMON GOLD CORPORATION :

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

ORDER

BY THE COMMISSION:

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

§ 801 et seq. (2006) (“Mine Act”). On January 31, 2011, the Commission received from 

Drumlummon Gold Corporation (“Drumlummon”) a motion by counsel to reopen a penalty

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

33 FMSHRC Page 2113
1

 We note that in the safety manager’s affidavit attached to the request to reopen, the

safety manager states that he intends to prepare detailed instructions on how to handle

assessments in his absence so as to avoid this type of oversight in the future. We agree with the

Secretary that the operator should take such precautions. The Commission has held that an

inadequate or unreliable internal processing system does not constitute inadvertence, mistake or

excusable neglect so as to justify the reopening of an assessment which has become final under

section 105(c) of the Mine Act. Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008);

Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Highland Mining Co., 31 FMSHRC

1313, 1315 (Nov. 2009): Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Elk

Run Coal Co., 32 FMSHRC 1587, 1588 (Dec. 2010). 

On November 24, 2010, the Department of Labor’s Mine Safety and Health

Administration (“MSHA”) issued Proposed Assessment No. 000239191 to Drumlummon for 

13 violations that MSHA had issued to the operator in September and October 2010. 

Drumlummon states that it failed to timely contest the assessments because its safety manager,

who is responsible for processing assessments, was out of the office on medical leave for an

unexpected extended period. The operator contends that the safety manager took unscheduled

leave for health-related issues on November 17, 2010 and initially was scheduled to return on 

December 15, 2010. The operator explains that due to unanticipated medical complications, the

safety manager did not return to work until January 27, 2011. The assessment dated 

November 24, 2010, was delivered to the operator during the manager’s absence, but because the

manager’s expected return on December 15 was before the date the assessment would become

final, it was not acted upon. The operator notes that it filed its request to reopen days after the

manager’s return to work, when he discovered the delinquency, and about a month after the

order became final.

On February 14, 2011, the Commission received a response from the Secretary of Labor

stating that she does not oppose the request to reopen the assessment. The Secretary urges the

operator to adopt procedures to ensure future assessments are timely contested and notes that she

may oppose future motions to reopen assessments that are not timely contested.

Although the operator’s internal procedures for handling assessments failed in this

instance because it did not have a back-up system in place for processing assessments should the

safety manager be unavailable, this is the operator’s first request to reopen. Moreover, the

operator’s request was filed promptly upon the safety manager’s discovery of the delinquent

assessment and about one month after the assessment became final. Under the limited

circumstances of this case, we conclude that the operator’s failure to timely file a contest

amounted to mistake or inadvertence.1

33 FMSHRC Page 2114
Having reviewed the facts and circumstances of this case, Drumlummon’s request, and

the Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative

Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. 

§ 2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2115
Distribution:

Mark N. Savit, Esq.

Patton Boggs LLP

1801 California Street, Suite 4900

Denver, CO 80202

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2116
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 15, 2011

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA)

 

v.

 

CON-AGG OF MO, LLC 

 :

 :

 :

 :

 :

 :

 :

 :

Docket No. CENT 2011-193-M

A.C. No. 23-00078-230288

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

ORDER

BY THE COMMISSION:

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

§ 801 et seq. (2006) (“Mine Act”). On June 30, 2011, the Commission received a renewed

request to reopen a penalty assessment issued to Con-Agg of MO, LLC (“Con-Agg”) that had

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

§ 815(a).

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

33 FMSHRC Page 2117
On August 31, 2010, the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) issued Proposed Assessment No. 000230288 to Con-Agg for six citations issued to

the operator in July 2010. The operator failed to timely contest the proposed assessment. In its

first request to reopen filed November 15, 2010, Con-Agg stated that it first had constructive

notice of the “citation” on November 8, 2010, and received actual notice on November 12, 2010. 

The Secretary opposed the motion on the grounds that the proposed assessment was delivered to

Con-Agg and signed for on September 7, 2010, and that the operator failed to explain its failure

to timely contest the assessment. The Commission subsequently denied the request without

prejudice for Con-Agg’s failure to provide a sufficiently detailed explanation for its failure to

timely contest the proposed assessment. See Con-Agg of Mo, LLC, 33 FMSHRC ____, slip op.

at 2, No. CENT 2011-193-M (June 1, 2011).

In its June 30, 2011, renewed request, Con-Agg states that it first became aware of the

proposed assessment on November 8, 2010, when Con-Agg’s mine manager discovered the

proposed assessment while checking MSHA’s database system. After an unsuccessful internal

search for the proposed assessment, Con-Agg contacted MSHA and on November 12 received a

copy of the proposed assessment. The person responsible for receiving packages for Con-Agg at

that time maintains that she does not remember receiving a package from MSHA. Con-Agg

further states that there was disruption in the company during that time because the mining

operation was in the process of being sold and transferred. In addition, the package would have

been addressed to and received by one of the prior owners, Larry Moore, who states that he

never saw the assessment from MSHA. Con-Agg asserts that to date it has not located the

original proposed assessment from MSHA. Con-Agg paid the remaining citations that it did not

intend to contest on November 9, 2010, and on November 15, 2010, filed a letter with MSHA

attempting to contest the remaining Citation No. 6473993. Con-Agg further states that on

January 4, 2011, it previously filed a Motion to Permit Late Contest Filing. This motion,

however, was not associated with the proper case file by the Commission.

On July 8, 2011, the Secretary filed a response, stating that she does not oppose the

renewed request for reopening. 

33 FMSHRC Page 2118
Having reviewed Con-Agg’s requests and the Secretary’s response, in the interests of

justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for

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

Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for

assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

 /s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2119
Distribution:

Patrick Short, Mngr. 

Con-Agg of Mo., LLC

2604 North Stadium Blvd.

Columbia, MO 65202-1271

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2120
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 15, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. KENT 2011-1410 

: A.C. No. 15-18360-102222

 :

 : Docket No. KENT 2011-1411 

: A.C. No. 15-18360-114577

 :

 : Docket No. KENT 2011-1412

: A.C. No. 15-18360-136738

 :

 : Docket No. KENT 2011-1413

: A.C. No. 15-18360-092183

 :

 : Docket No. KENT 2011-1414

: A.C. No. 15-18360-086784

 :

 : Docket No. KENT 2011-1415

: A.C. No. 15-18360-097149

 :

 : Docket No. KENT 2011-1416

: A.C. No. 15-18360-124120

 :

 : Docket No. KENT 2011-1417

v. : A.C. No. 15-18360-121245

 :

H&D MINING, INC. :

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

33 FMSHRC Page 2121
1

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

consolidate docket numbers KENT 2011-1410, KENT 2011-1411, KENT 2011-1412, KENT

2011-1413, KENT 2011-1414, KENT 2011-1415, KENT 2011-1416 and KENT 2011-1417, all

captioned H&D Mining, Inc., and involving similar procedural issues. 29 C.F.R. § 2700.12.

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On August 19, 2011, the Commission received from H&D

Mining, Inc. (“H&D”) a motion made by counsel seeking to reopen eight penalty assessments

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

30 U.S.C. § 815(a).1

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

The record indicates that the proposed assessments were delivered to the operator over a

two-year period, from July 2006 through February 2008. H&D asserts that its failure to contest

was due to the fact that the mine was in the process of being shut down. Moreover, H&D claims

it was unfamiliar with the contest process since it never filed one before. 

33 FMSHRC Page 2122
2

 We hereby grant the Secretary’s motion and have expedited our consideration. 

The Secretary has filed a motion for expedited consideration of this matter on 

September 9, 2011, along with her response to the motion to reopen.2 The Secretary opposes the

request to reopen because it was filed three to five years after the proposed assessments became

final Commission orders. Moreover, the Secretary notes that H&D makes no showing of

exceptional circumstances that warrant reopening. Specifically, there is no explanation as to

when the shut-down process occurred or why it prevented the timely filing of contests over a

two-year period. Furthermore, the Secretary notes that the courts have held that ignorance of the

rules and the law is not a permissible ground for reopening under Rule 60(b)(1). In addition, the

Secretary asserts that H&D did not respond to any of the delinquency notices dating from

September 2006 through April 2008, and the assessments totaling $207,278 were forwarded to

the U.S. Treasury Department for collection purposes. On April 1, 2011 the United States filed

an action in federal district court to compel payment by the operator. Although this reopening

request was explicitly invoked in the answer to the district court action, H&D makes no mention

of the action in its reopening request to the Commission. Finally, the Secretary states that the

operator’s delinquency record, which shows that it has repeatedly disregarded final penalty

assessments, indicates that it has not acted in good faith. Moreover, the fact that the operator

waited until the United States sued it in district court to request reopening, and then omitted any

mention of that action in its request, is the antithesis of good faith, and a strategy which the

Secretary urges the Commission not to reward. 

We have held that a Rule 60(b) motion shall be made within a reasonable time, and for

reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was

entered or taken. Here, the motion to reopen was filed three to five years after the proposed

assessments became final Commission orders. Therefore, H&D’s motion is untimely. J S Sand

& Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004). 

Additionally, it is well recognized in federal jurisprudence that the issue of whether the

movant acted in good faith is an important factor in determining the existence of excusable

neglect. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993); FG

Hemisphere Assocs., LLC v. Democratic Republic of Congo, 447 F.3d 835, 838 (D.C. Cir. 2006). 

Likewise, the Commission has recognized that a movant’s good faith, or lack thereof, is relevant

to a determination of whether the movant has demonstrated mistake, inadvertence, surprise or

excusable neglect within the meaning of Rule 60(b)(1) of the Federal Rules of Civil Procedure. 

M.M. Sundt Constr. Co., 8 FMSHRC 1269, 1271 (Sept. 1986); Easton Constr. Co., 3 FMSHRC

314, 315 (Feb. 1981). As pointed out by the Secretary, H&D’s delinquency record and its

strategy of waiting to file a request to reopen until it was sued for payment collection and then

omitting any mention of that action in its request, demonstrates a lack of good faith militating

against granting extraordinary relief in this case. Oak Grove Res., LLC, 33 FMSHRC ____, slip

op. at 3-4, No. SE 2011-16 (June 7, 2011). 

33 FMSHRC Page 2123
Having reviewed H&D’s request and the Secretary’s response, we conclude that H&D

has failed to establish good cause for reopening the proposed penalty assessments and deny its

motion with prejudice. 

 /s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2124
Distribution:

Jeffrey K. Phillips, Esq.

Steptoe & Johnson, PLLC

1010 Monarch Street, Suite 250

Lexington, KY 40591-0810

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2125
1

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

the proceedings in Docket Nos. WEVA 2011-559, WEVA 2011-561 and WEVA 2011-562, each

captioned Big River Mining, LLC and involving similar procedural issues. 29 C.F.R. § 2700.12.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 15, 2011

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH : Docket No. WEVA 2011-559

 ADMINISTRATION (MSHA) : A.C. No. 46-09136-218772

 :

v. : Docket No. WEVA 2011-561

 : A.C. No. 46-09136-221821

BIG RIVER MINING, LLC :

 : Docket No. WEVA 2011-562

 : A.C. No. 46-09136-225134

 :

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

ORDER

BY THE COMMISSION:

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

§ 801 et seq. (2006) (“Mine Act”). On December 13, and December 14, 2010, Big River

Mining, LLC, (“Big River”) filed motions requesting that the Commission reopen penalty

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

Mine Act, 30 U.S.C. § 815(a).1

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

33 FMSHRC Page 2126
by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

These three proceedings concern a total of 147 enforcement actions issued by the Mine

Safety and Health Administration (“MSHA”) and total proposed penalties of $281,919. Big

River alleges that it was unable to timely file the contest forms associated with each proposed

assessment due to an unforeseen mistake, inadvertence or excusable neglect. First, the operator

states that it has no record of receiving the proposed assessments. Second, Big River contends

that each final order should be reopened because the assessments, even if received, did not reach

the Broad Run mine’s superintendent or safety director. 

On January 14, 2011, the Secretary of Labor (“Secretary”) responded that she opposes

each of the motions to reopen. She included the Federal Express “Detailed Results,” which

demonstrated that the proposed assessments were delivered to the mine, as an exhibit to each

response. 

The three proposed assessment were signed for at the mine, upon their delivery. A

different person signed for each delivery. Proposed Assessment No. 000218772 was issued on

May 4, 2010, and assessed a penalty of $160,864 for 39 enforcement actions. The Secretary

represents that it was delivered to the mine on May 12, and became a final order on June 11. 

Proposed Assessment No. 000221821 was issued on June 8, 2010, and assessed a penalty of

$74,693 for 82 enforcement actions. The Secretary represents that it was delivered to the mine

on June 15, and became a final order on July 23. Proposed Assessment No. 000225134 was

issued on July 6, 2010, and assessed a penalty of $46,362 for 26 enforcement actions. The

Secretary represents that it was delivered to the mine on July 12, and became a final order on

August 11. 

Big River did not reply to the Secretary’s response, despite the Secretary’s inclusion of

the Federal Express “Detailed Results.” We construe the operator’s failure to reply and address

the delivery confirmations as a tacit confirmation that the proposed assessments were received. 

Therefore, we instead consider the merits of the operator’s alternative assertion – that a change

in the mine’s operating status and reductions in staff prevented the mine’s superintendent and

safety director from receiving the proposed assessments.

In its motion to reopen, Big River outlines a series of changes which occurred at the mine

during the spring of 2010, and asserts that these changes contributed to its failure to timely file

the contest forms. Big River states that on March 23, 2010, a new safety director began at the

mine and shortly thereafter on April 9, 2010, the mine became a non-producing facility. The

operator also states that over the course of the next two months the number of staff at the mine

decreased from over 100 employees to fewer than 10 employees. Furthermore, Big River states

that around this time both the superintendent and safety director assumed “expanded roles” at a

separate Big River facility. 

33 FMSHRC Page 2127
2

 The Department of Treasury’s delinquency notice was not the first delinquency notice

issued to Big River for Case No. 000218772. Included with the Secretary’s response was a

notice of delinquency issued by MSHA on July 29, 2010, for this case. Big River made no

mention of this correspondence in its motion to reopen.

Chad Carte, the human resource manager, described the mail receipt and distribution

process at the mine in an affidavit. BR Ex. 2. He stated that all deliveries at Big River were

made to the administrative office, where mail was sorted and placed into the internal mailboxes

for the individual addressee. If an item of mail was identified as a safety related matter, standard

procedure was to submit that item to the safety director, regardless of the addressee. Although

the safety director and superintendent had “expanded roles” at another facility, their mail was

regularly placed in their respective internal mailbox, and periodically picked up for their review. 

Carte states that he began opening all mail sent to the mine’s address in September 2010,

“in light of the continuing non-producing status of the mine, to direct correspondence to the most

appropriate office for handling.” Id. On or about September 13, Carte opened a notice of

delinquency issued by MSHA on September 7 for Case No. 000221821. Carte forwarded this

delinquency notice to Barbara Willis, manager of accounts payable, who received it on or about

September 16, 2010. On or about November 1, Carte opened a notice of delinquency issued by

MSHA on October 26, for Case No. 000225134. Carte forwarded this notice to Willis, who

received it on or about November 5. On or about December 1, Carte opened a notice of

deficiency issued by the Department of the Treasury on November 27, for Case No. 000218772.2

Carte forwarded this notice to Willis, who received it on or about December 4.

Willis states that she internally investigated the delinquent penalties, but “turned up no

evidence that the proposed assessment[s] [were] received or returned by the superintendent,

safety director, or any personnel at the mine”. BR Ex. 4. On December 9, Big River contacted

outside counsel. Outside counsel filed the three subject motions to reopen.

The Secretary responds, in part, that the operator’s inadequate office procedures are not a

sufficient basis for reopening the penalty assessments. Additionally she notes that the operator

failed to explain the seven month delay between receiving Assessment No. 000218772, and more

than four month delay between MSHA’s issuance of the delinquency notice, and its request to

reopen. Nor did the operator explain the six month delay between receiving Assessment No.

000221821, and three month delay between MSHA’s issuance of the delinquency notice, and its

request to reopen.

The record indicates that the operator received and signed for the proposed assessments. 

It is unclear what became of the assessments after receipt, but their resulting failure to reach

either the superintendent or safety director makes it obvious that the assessments were not

handled in a diligent manner. It is inconsequential, for the purposes of reopening a final order,

that the mine was idled and was operating with a reduced staff. The Commission has held that

the idling of a mine does not relieve an operator of its obligation to open and deal with the mail it

receives. Elk Run Coal Co., 32 FMSHRC 1587, 1588 (Dec. 2010). 

33 FMSHRC Page 2128
3

 In considering whether an operator has unreasonably delayed in filing a motion to

reopen a final Commission order, we find relevant the amount of time that has passed between

an operator’s receipt of a delinquency notice and the operator’s filing of its motion to reopen. 

See, e.g., Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009); Highland Mining Co., 31

FMSHRC 1313, 1316 (Nov. 2009) (holding that motions to reopen filed more than 30 days after

receipt of the notice of delinquency must explain the reasons why the operator waited to file a

reopening request, and lack of explanation is ground for the Commission to deny the motion).

 The Secretary’s response raised the issue, and Big River did not file a reply providing

an explanation. We encourage parties seeking reopening to provide further information in

response to pertinent questions raised in the Secretary’s response. Highland, 31 FMSHRC at

1316 n.3 (citation omitted). “Accordingly, where the Secretary raises the issue of the delay

between receipt of a delinquency letter and the filing of the request to reopen, an operator who

does not explain why, after it was informed of a delinquency, it took as long as it did to request

reopening, does so at its peril.” Id.

The record also indicates that the operator did not have a reliable internal procedure for

receiving and distributing mail at the time the proposed assessments were received. A failure to

contest a proposed assessment that results from an inadequate or unreliable internal processing

system is not grounds for reopening the assessment. Double Bonus Coal Co., 32 FMSHRC

1155, 1156 (Sept. 2010); Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008); Pinnacle

Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008). 

In addition, the operator failed to explain why it delayed in responding to MSHA’s

issuance of a delinquency notice for more than four months (000218772), three months

(000221821), and more than one month (000225134).3 Having reviewed Big River’s motions to

reopen, and the Secretary’s responses, we agree that the operator has failed to provide a

sufficient basis for the Commission to reopen the penalty assessments. 

33 FMSHRC Page 2129
For the reasons stated herein, we conclude that these motions have failed to make a

showing of circumstances that warrant reopening of the penalty assessments. Accordingly, the

motions are denied.

 

 /s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2130
Distribution:

Curtis R. A. Capehart, Esq.

Dinsmore & Shohl, LLP

P. O. Box 11887

900 Lee Street, Suite 600

Charleston, WV 25339

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2131
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 15, 2011

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 : Docket No. WEVA 2011-560

v. : A.C. No. 46-08194-231276

 :

CARTER ROAG COAL COMPANY :

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

ORDER

BY THE COMMISSION:

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

§ 801 et seq. (2006) (“Mine Act”). On December 13, 2010, the Commission received from

Carter Roag Coal Company (“Carter Roag”), a motion requesting that the Commission reopen a

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

of the Mine Act, 30 U.S.C. § 815(a). On January 19, 2011, the Commission received a response

from the Secretary of labor stating that she does not oppose the request to reopen the assessment.

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

33 FMSHRC Page 2132
Having reviewed the facts and circumstances of this case, the operator’s request, and the

Secretary’s response, we hereby reopen this matter and remand it to the Chief Administrative

Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a

petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. §

2700.28. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2133
Distribution:

Robert H. Beatty, Jr., Esq.

Dinsmore & Shohl, LLP

215 Don Knotts Blvd., Suite 310

Morgantown, WV 26501

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2134
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. CENT 2011-935-M

v. : A.C. No. 41-04586-254171

:

LUMINANT MINING COMPANY, LLC :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On July 15, 2011, the Commission received from Luminant

Mining Company, LLC (“Luminant”) a motion submitted by counsel seeking to reopen a penalty

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

Mine Act, 30 U.S.C. § 815(a). The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

33 FMSHRC Page 2135
Having reviewed Luminant’s request and the Secretary’s response, in the interests of

justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for

further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.

Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for

assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan. 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2136
Distribution:

Karen L. Johnston, Esq. 

Jackson Kelly PLLC

1099 18th Street, Suite 2150

Denver, CO 80202

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2137
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. LAKE 2011-593-M

v. : A.C. No. 11-02725-235079 A

:

JASON FALK, employed by :

 LAFARGE UTICA, INC. :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On April 22, 2011, the Commission received from Jason Falk,

Employed by Lafarge Utica, Inc. (“Falk”) a motion made by counsel seeking to reopen a penalty

assessment under section 110(c) of the Mine Act, 30 U.S.C. § 820(c), that had become a final

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

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

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

33 FMSHRC Page 2138
Falk asserts the penalty assessment form was mailed to the address of Lafarge Elburn,

Inc. and then forwarded to Lafarge Utica, Inc., Falk’s employer. Falk further asserts the form

was never received by Falk or Lafarge Utica, Inc. The Secretary does not oppose the request to

reopen. However, the Secretary notes that the proposed assessment was mailed to Mr. Falk at

the operator’s address of record, after Falk declined a request to provide a mailing address. 

Moreover, the Secretary asserts that she will oppose further requests to reopen unless Falk

provides a correct mailing address to which MSHA may send documents. 

33 FMSHRC Page 2139
1 While we note that Falk did not receive the proposed assessment, this failure may have

been caused by Falk’s refusal to provide a valid address for service upon MSHA’s request. Falk

concedes that the assessment was delivered to Lafarge Elburn, Inc., and MSHA asserts that this

is his employer’s address of record. An operator who refuses delivery is deemed to have

accepted certified mail under Section 105 of the Mine Act. Falk did not refuse delivery of

certified mail; however, there may be some question as to whether the assessment was

constructively delivered, under the circumstances. We need not resolve that issue, because the

Secretary has not opposed reopening, but we have determined that it would not be appropriate to

dismiss this matter as moot due to failure of service. 

Having reviewed Falk’s request and the Secretary’s response, in the interests of justice,

we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further

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

2700.1 Consistent with Rule 28, the Secretary shall file a petition for assessment of penalty

within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2140
Distribution:

Laura E. Beverage, Esq. 

Jackson Kelly PLLC

1099 18th Street, Suite 2150

Denver, CO 80202

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2141
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. LAKE 2011-733-M

v. : A.C. No. 21-00820-249870

:

PARSONS ELECTRIC COMPANY, INC. :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On June 3, 2011, the Commission received from Parsons

Electric Company, Inc. (“Parsons”) a motion seeking to reopen a penalty assessment that had

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

30 U.S.C. § 815(a).

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

The record indicates that the proposed assessment was delivered to Parsons’ address of

record and signed for by E. Peterson on March 29, 2011. The proposed assessment became a

33 FMSHRC Page 2142
1

 We encourage parties seeking reopening to provide further information in response to

pertinent questions raised in the Secretary’s response. See, e.g., Climax Molybdenum Co., 30

FMSHRC 439, 440 n.1 (June 2008); Highland Mining Co., 31 FMSHRC 1313, 1316 n.3 (Nov.

2009). 

final order of the Commission on April 28, 2011. Parsons asserts it never received the proposed

assessment. Parsons further asserts it first discovered the citation was listed as a “final order”

while reviewing its Contractor ID on the MSHA website. After contacting the MSHA office,

Parsons received a copy of the proposed assessment by email on May 31, 2011. The motion to

reopen was filed the next day, on June 1, 2011. 

The Secretary opposes the request to reopen and states that the operator offers no

explanation for its assertion that it never received the proposed assessment, which is contradicted

by MSHA records.1

 However, in considering an operator’s request to reopen a final Commission

order we find relevant the amount of time that has passed between the date the operator first

learned the penalty was not timely contested and the operator’s filing of its motion to reopen. 

See, e.g., Left Fork Mining Co., 31 FMSHRC 8, 10-11 (Jan. 2009); Highland Mining Co., 31

FMSHRC 1313, 1316 (Nov. 2009). Here, Parsons did not wait to receive a delinquency notice

from MSHA, contacted the office to receive a copy of the assessment, and filed a motion to

reopen immediately thereafter. 

33 FMSHRC Page 2143
Having reviewed Parsons’ request and the Secretary’s response, in the interests of justice,

we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further

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

2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of

penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2144
Distribution:

Bonnie Lunzer, Safety Director 

Parsons Electric Company, Inc. 

5960 Main Street, NE

Minneapolis, MN 55432

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2145
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. LAKE 2011-812

v. : A.C. No. 11-03054-242336

:

BIG RIDGE, INC. :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On June 29, 2011, the Commission received from Big Ridge,

Inc. (“Big Ridge”) a motion submitted by counsel seeking to reopen a penalty assessment that

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

30 U.S.C. § 815(a).

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

33 FMSHRC Page 2146
Big Ridge asserts that even though the underlying citation is the subject of a contest case

before the Commission, it had mistakenly paid the penalty. Big Ridge states that due to the

relatively low amount of $212 and lack of aggravating allegations, its Compliance Manager

failed to recognize this contested citation among sixty-one other citations and orders on the

assessment sheet. The Secretary does not oppose the request to reopen.

33 FMSHRC Page 2147
Having reviewed Big Ridge’s request and the Secretary’s response, in the interests of

justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for

further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.

Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for

assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2148
Distribution:

Daniel W. Wolff, Esq. 

Crowell & Moring LLP

1001 Pennsylvania Avenue NW

Washington, DC 20004

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2149
1

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

docket numbers PENN 2009-326, PENN 2009-381 and PENN 2009-526, all captioned Eighty

Four Mining Company, and all involving similar procedural issues. 29 C.F.R. § 2700.12. 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR, : Docket No. PENN 2009-326

MINE SAFETY AND HEALTH : A.C. No. 36-00958-173884

ADMINISTRATION (MSHA) :

: Docket No. PENN 2009-381

v. : A.C. No. 36-00958-176449

 :

 : Docket No. PENN 2009-526

EIGHTY FOUR MINING COMPANY : A.C. No. 36-00958-184691

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On March 22, 2011, the Commission received from Eighty

Four Mining Company (“Eighty Four”) motions made by counsel seeking to reopen three

penalty assessment proceedings and relieve it from the orders of default entered against it.1

On November 12, 2010 and November 15, 2010, Chief Judge Lesnick issued three

Orders to Show Cause and Orders of Default in response to Eighty Four’s failure to answer the

Secretary’s March 18, 2010, April 7, 2010 and April 22, 2010 Petitions for Assessment of Civil

Penalty. The judge ordered the operator to file its answers within 30 days or it would be in

default. 

Eighty Four asserts it did not receive the Orders to Show Cause or the Secretary’s

previously filed Petitions for Assessment of Civil Penalty because the mine portal to which they

were mailed has been closed, vacated and locked since 2009. The Secretary does not oppose the

Motions to Lift Default Orders and notes that the Mine Safety and Health Administration

(“MSHA”) records show that the penalty petitions were returned “undelivered.”

Having reviewed Eighty Four’s request and the Secretary’s response, in the interest of

justice, we conclude that the Orders of Default have not become final orders of the Commission

33 FMSHRC Page 2150
because the Orders to Show Cause were never received by Eighty Four. Accordingly, this case

is remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine

Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Eighty Four shall file an

Answer to the Show Cause Orders within 30 days of the date of this order. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2151
Distribution:

R. Henry Moore, Esq.

Jackson Kelly PLLC

Three Gateway Center, Suite 1340

401 Liberty Avenue

Pittsburgh, PA 15222-1000

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2152
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. SE 2008-671-M

v. : A.C. No. 38-00388-147374

:

INDUSTRIAL MINERALS, INC. :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On February 24, 2011, the Commission received from

Industrial Minerals, Inc. (“Industrial”) a motion seeking to reopen a penalty assessment

proceeding and relieve it from the order of default entered against it. 

On August 3, 2010, Chief Judge Lesnick issued an Order to Show Cause in response to

Industrial’s request for a hearing and failure to answer the Secretary’s May 30, 2008 Petition for

Assessment of Civil Penalty. In it, he ordered the operator to file its answer within 30 days or it

would be in default. On December 2, 2010, Judge Lesnick issued an Order of Default for failing

to comply with his Show Cause Order. 

Industrial asserts it filed a timely response to the Show Cause Order and provides a

certified mail receipt signed by the Commission’s Docket Office on August 23, 2010. Moreover,

Industrial states it also responded to the Default Order and provides another certified mail receipt

signed for by the Docket Office on December 9, 2010. The Secretary does not oppose the

request to reopen. 

33 FMSHRC Page 2153
Having reviewed Industrial’s request and the Secretary’s response, in the interest of

justice, we conclude that Industrial was not in default under the terms of the Show Cause Order,

as it timely complied with the Order. Hence, the Order of Default was issued in error. 

Accordingly, this case is remanded to the Chief Administrative Law Judge for further

proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 

29 C.F.R. Part 2700. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2154
Distribution:

Lewis G. Wilson

Industrial Minerals, Inc. 

141 Mineral Drive 

Blacksburg, SC 29702

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209 

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2155
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. SE 2009-381-M

v. : A.C. No. 09-01164-176801

:

CARBO CERAMICS, INC. :

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On March 25, 2011, the Commission received from Carbo

Ceramics, Inc. (“Carbo”) a motion seeking to reopen a penalty assessment proceeding and

relieve it from the order of default entered against it. 

On October 6, 2010, Chief Judge Lesnick issued an Order to Show Cause and Order of

Default in response to Carbo’s failure to answer the Secretary’s May 15, 2009 Petition for

Assessment of Civil Penalty. In it, he ordered the operator to file its answer within 30 days or it

would be in default. The Commission has no record of receiving a copy of Carbo’s answer

within 30 days, so the order of default became effective on November 8, 2010. 

Carbo asserts that it timely responded to the Order to Show Cause by submitting its

answer to the Secretary’s Petition on October 27, 2010. The Secretary does not oppose the

request to reopen and notes that the attorney handling this case in the Atlanta Regional

Solicitor’s Office confirms he received a timely answer in response to the Show Cause Order.

33 FMSHRC Page 2156
The judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R.

§2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s

decision may be sought by filing a petition for discretionary review within 30 days of its

issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). If the Commission does not direct

review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.

30 U.S.C. § 823(d)(1). Consequently, the judge’s order here has become a final decision of the

Commission.

In evaluating requests to reopen final orders, the Commission has found guidance in Rule

60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled

to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable

neglect. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as

practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 15 FMSHRC 782,

786-89 (May 1993) (“JWR”). We have also observed that default is a harsh remedy and that, if

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

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

Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

33 FMSHRC Page 2157
Having reviewed Carbo’s request and the Secretary’s response, in the interest of justice,

we hereby reopen the proceeding and vacate the Order of Default. Accordingly, this case is

remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2158
Distribution:

Roger Riffey

Toomsboro Plant Manager

Carbo Ceramics, Inc. 

1880 Dent Road

Toomsboro, GA 31090

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Craig Nydick, MSHA

US Department of Labor

61 Forsyth Street, SW, Room 7T10

Atlanta, GA 30303

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2159
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. SE 2009-420-M

v. : A.C. No. 40-01153-180427 VRG

:

JACKSON ENTERPRISES, INC. :

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On February 18, 2011, the Commission received from

Jackson Enterprises, Inc. (“Jackson”) a motion seeking to reopen a penalty assessment

proceeding and relieve it from the order of default entered against it. 

On October 6, 2010, Chief Judge Lesnick issued an Order to Show Cause and Order of

Default in response to Jackson’s failure to answer the Secretary’s July 22, 2009 Petition for

Assessment of Civil Penalty. In it, he ordered the operator to file its answer within 30 days or it

would be in default. The Commission did not receive Jackson’s answer within 30 days, so the

order of default became effective on November 8, 2010. 

Jackson asserts it submitted a timely answer to the Secretary’s Petition for Assessment

and did not receive the Order to Show Cause. However, it appears as if it mailed its answer to

the Secretary but not to the Commission. The Secretary does not oppose the request to reopen

and notes that the attorney handling this case in the Nashville Regional Solicitor’s Office

confirms she received a timely answer to the penalty petition in this case. 

33 FMSHRC Page 2160
The judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. 

§ 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s

decision may be sought by filing a petition for discretionary review within 30 days of its

issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). If the Commission does not direct

review within 40 days of a decision’s issuance, it becomes a final decision of the Commission.

30 U.S.C. § 823(d)(1). Consequently, the judge’s order here has become a final decision of the

Commission.

In evaluating requests to reopen final orders, the Commission has found guidance in Rule

60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled

to relief from a final order of the Commission on the basis of mistake, inadvertence, or excusable

neglect. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as

practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 15 FMSHRC 782,

786-89 (May 1993) (“JWR”). We have also observed that default is a harsh remedy and that, if

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

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

Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

33 FMSHRC Page 2161
Having reviewed Jackson’s request and the Secretary’s response, in the interest of justice,

we hereby reopen the proceeding and vacate the Order of Default. Accordingly, this case is

remanded to the Chief Administrative Law Judge for further proceedings pursuant to the Mine

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2162
Distribution:

Perry K. Ingram, President

Jackson Enterprises, Inc.

204 South Maple Street

Lebanon, TN 37087

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Renita Hollins

Department of Labor

Office of the Solicitor 

211 7th Avenue North, Suite 420

Nashville, TN 37219

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209 

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2163
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. SE 2009-845-M

v. : A.C. No. 40-00020-193999

:

VULCAN CONSTRUCTION :

 MATERIALS, LP :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On May 19, 2011, the Commission received from Vulcan

Construction Materials, LP (“Vulcan”) a motion seeking to reopen a penalty assessment

proceeding and relieve it from the order of default entered against it. 

On February 2, 2011, Chief Judge Lesnick issued an Order to Show Cause and Order of

Default in response to Vulcan’s failure to answer the Secretary’s September 30, 2009 Petition for

Assessment of Civil Penalty. In it, he ordered the operator to file its answer within 30 days or it

would be in default. 

Vulcan asserts it filed a timely response to the Show Cause Order and has provided

copies of the FedEx tracking document, indicating it was received and signed for by the

Commission. The Secretary does not oppose the request to reopen. 

33 FMSHRC Page 2164
Having reviewed Vulcan’s request and the Secretary’s response, in the interest of justice,

we conclude that Vulcan was not in default under the terms of the Show Cause Order, as it

timely complied with the Order. Accordingly, this case is remanded to the Chief Administrative

Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2165
Distribution:

Steven T. Perkins

Safety and Health Representative

MidSouth Division

Vulcan Construction Materials, LP

1410 Donelson Pike - Airpark II, STE. B-19

Nashville, TN 37217

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2166
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. WEST 2011-1001-M

v. : A.C. No. 50-01614-242769

:

SCABTRON :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On May 19, 2011, the Commission received from Scabtron a

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

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

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

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

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

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

Scabtron asserts it did not receive the proposed assessment although it changed its

address of record to facilitate FedEx deliveries. It further notes that upon receiving a

delinquency letter from the Department of Treasury, it paid the penalties in full, including fees

and interest, since it never received instructions on how to contest. The Secretary does not

oppose the request to reopen and notes that the proposed assessment was returned undelivered. 

The Secretary submits that a change of address was reported to MSHA, but was not made

official by the operator on its Legal ID Report’s Address of Record (MSHA Legal ID form

2000-7). As the Secretary states, it is Scabtron’s responsibility to make official changes to its

address of record on its Legal Identity Report.

33 FMSHRC Page 2167
1We deny the operator’s request as moot because it no longer needs the Commission to

grant the relief it had initially requested (by reopening these orders), since the orders never

became final, as Scabtron never received the proposed assessments.

2 As explained by the Secretary in her response, given changes to the original proposed

assessment, No. 000242769, citations 8554703, 8554694, 8554706, 8554708, 8554709, 8554710

and 8554714 are now the remaining underlying citations in this penalty case.

Having reviewed Scabtron’s request and the Secretary’s response, we conclude that the

above-captioned assessment has not become a final order of the Commission because it was

never received by Scabtron. Accordingly, we deny the request to reopen as moot1 and remand

this matter2 to the Chief Administrative Law Judge for further proceedings pursuant to the Mine

Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with

Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of

this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2168
Distribution:

Mike Miell, Scabtron

C/O Glen Thurman

1970 Porcupine Lane

Fairbanks, AK 99712

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2169
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. WEST 2011-1002-M

v. : A.C. No. 04-05276-214576 DPB

:

ALPHA EXPLOSIVES :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On May 19, 2011, the Commission received from Alpha

Explosives (“Alpha”) a motion seeking to reopen a penalty assessment that may have become a

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

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

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

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

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

The operator received a delinquency letter from MSHA dated June 30, 2010. It asserts it

never received the penalty assessment at issue since it was mailed to an incorrect address. Alpha

further asserts it corrected the address on its Legal ID Report. The Secretary does not oppose the

request to reopen and notes that the proposed assessment was returned undelivered. However,

the Secretary submits that the address on the Contractor’s ID Report was changed on 

September 28, 2010, more than four months after the proposed assessment was mailed to the

address of record. As the Secretary states, it is Alpha’s responsibility to keep MSHA informed

of changes to its address of record on its Legal Identity Report. 

33 FMSHRC Page 2170
Having reviewed Alpha’s request and the Secretary’s response, we conclude that the

above-captioned assessment has not become a final order of the Commission because it was

never received by Alpha. Accordingly, we deny the request to reopen as moot and remand this

matter to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act

and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Consistent with Rule 28, the

Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. 

See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2171
Distribution:

Brad Langer, CEO

Alpha Explosives

P.O. Box 310

Lincoln, CA 95648

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2172
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. WEST 2011-1154-M

v. : A.C. No. 26-01916-255278

:

ROBINSON NEVADA MINING CO. :

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On July 5, 2011, the Commission received from Robinson

Nevada Mining Co. (“Robinson”) a motion submitted by counsel seeking to reopen a penalty

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

Mine Act, 30 U.S.C. § 815(a). The Secretary does not oppose the request to reopen. 

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

Having reviewed Robinson’s request and the Secretary’s response, in the interests of

justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for

33 FMSHRC Page 2173
further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.

Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for

assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2174
Distribution:

Dana M. Svendsen, Esq. 

Jackson Kelly PLLC

1099 18th Street, Suite 2150

Denver, CO 80202

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2175
1

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

docket numbers WEST 2011-874-M, WEST 2011-875-M and WEST 2011-876-M, all captioned

H & B Crushing, LLC, and involving similar procedural issues. 29 C.F.R. § 2700.12. 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. WEST 2011-874-M 

: A.C. No. 10-02000-226900

 :

 : Docket No. WEST 2011-875-M 

v. : A.C. No. 10-02000-215365

 :

 : Docket No. WEST 2011-876-M

H & B CRUSHING, LLC : A.C. No. 10-02000-198804

:

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On April 19, 2011, the Commission received from H & B

Crushing, LLC (“H&B”) a motion made by counsel seeking to reopen a penalty assessment that

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

30 U.S.C. § 815(a).1

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

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

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

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

33 FMSHRC Page 2176
We have held, however, that in appropriate circumstances, we possess jurisdiction to

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

This case involves a motion to reopen three assessments which have become final orders,

No. 000226900 dated July 29, 2010, No. 000215365 dated March 31, 2010, and No. 000198804

dated September 30, 2009. 

The record indicates that proposed assessment No. 000226900 was delivered on 

August 3, 2010, signed for by M. Hall, and became a final order of the Commission on

September 2, 2010. Notice of delinquency was mailed on October 26, 2010, and the case was

referred to the U.S. Treasury for collection on February 3, 2011. 

Proposed assessment No. 000215365 was delivered on April 7, 2010, signed for by S.

Hart, and became a final order of the Commission on May 7, 2010. Notice of delinquency was

mailed on June 30, 2010, and the case was referred to the U.S. Treasury for collection on 

October 21, 2010.

Proposed assessment No. 000198804 was delivered on October 7, 2009, signed for by T.

Davis, and became a final order of the Commission on November 6, 2009. Notice of

delinquency was mailed on December 23, 2009, and the case was referred to the U.S. Treasury

for collection on April 8, 2010. 

H&B asserts it did not receive these three proposed penalty assessments because they

were mailed not to its business address but to a restaurant in Cascade, Idaho. H&B further

asserts it only became aware that final orders were issued in these cases when it received a

different proposed assessment, No. 000230518, dated September 1, 2010, which listed these case

numbers as outstanding balances. The motion to reopen was filed on April 19, 2011. 

The Secretary opposes the request to reopen and notes that these proposed assessments

were mailed to the operator’s address of record in Cascade, Idaho, the same address that appears

on all of the proposed assessments sent to H&B in the past three years. The Secretary states it is

H&B’s responsibility to file an updated address of record and H&B’s failure to fulfill its legal

responsibilities does not constitute excusable neglect warranting reopening. Moreover, the

Secretary notes that these assessments appeared as outstanding balances on a contest form for

another assessment, No. 000230518, filed by H&B on September 27, 2010. The Secretary

further questions why H&B made no attempt to explain the long delay between receiving the

delinquency notices and filing its motion to reopen, ranging from six to sixteen months. 

33 FMSHRC Page 2177
2

 One of these other assessments was signed for by D. Hall and another one was signed

for by S. Hart.

Additionally, the Secretary asserts that proposed assessment No. 000198804 must be denied

because the operator waited more than a year after the assessment became a final order to request

reopening. Finally, the Secretary has provided evidence that three other proposed assessments

mailed to the same address were signed for and were timely paid.2

 

H&B has not replied to the Secretary’s opposition to its motion. We encourage parties

seeking reopening to provide further information in response to pertinent questions raised in the

Secretary’s response. See, e.g., Climax Molybdenum Co., 30 FMSHRC 439, 440 n.1 (June

2008); Highland Mining Co., 31 FMSHRC 1313, 1316 n.3 (Nov. 2009). We would expect that

in a case where an operator has claimed that it did not receive proposed assessments, and the

Secretary submits evidence that the proposed assessments were delivered, the operator would

respond to the Secretary’s evidence, especially where the Secretary’s evidence includes the

representation that the operator received other assessments delivered to the same address. 

H&B’s sole ground for making this motion is that the three proposed assessments were

not delivered to it. In light of the Secretary’s unrebutted evidence that (1) the assessments were

delivered and signed for, (2) four other proposed assessments were delivered to the same address

and acknowledged by H&B, and (3) the assessments were sent to H&B’s address of record, we

conclude that H&B has failed to prove that the assessments were not properly delivered. 

Moreover, we have also held that a Rule 60(b) motion shall be made within a reasonable

time, and for reasons of mistake, inadvertence, or excusable neglect under subsections (1), (2),

and (3) of the rule, not more than one year after the judgment, order, or proceeding was entered

or taken. The motion to reopen in the case of proposed assessment No. 000198804 was filed

more than a year after it became a final order. Therefore, with regard to proposed assessment

No. 000198804, H&B’s motion is untimely. J S Sand & Gravel, Inc., 26 FMSHRC 795, 796

(Oct. 2004). 

33 FMSHRC Page 2178
Having reviewed H&B’s requests and the Secretary’s responses, we conclude that H&B

has failed to establish good cause for reopening the proposed penalty assessments and deny its

motion with prejudice. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2179
Distribution:

S. Bryce Farris, Esq. 

Ringert Law

H&B Crushing, LLC

455 South Third Street 

P.O. Box 2773

Boise, ID 83701 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2180
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. WEST 2011-929-M

v. : A.C. No. 24-01467-249462-02

:

TROY MINE, INC. :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On May 6, 2011, the Commission received from Troy Mine,

Inc. (“Troy Mine”) a motion seeking to reopen a penalty assessment that may have become a

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

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

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

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

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

Troy Mine asserts that it timely mailed its contest form to the MSHA Civil Penalty

Compliance Office, and submits copies of Certified Mail receipts showing it was signed for by

an MSHA employee. However, it was informed by MSHA that it failed to timely contest the

proposed penalty assessment. The Secretary submits that upon reviewing the records in this

proceeding, she has discovered that the proposed penalty is the subject of an active civil penalty

proceeding (Docket No. WEST 2011-886-M). In that proceeding, the Secretary’s penalty

petition was filed on May 23, 2011. Based upon these findings, the Secretary submits that the

request to reopen should be dismissed as moot. 

 

33 FMSHRC Page 2181
Having reviewed Troy Mine’s request and the Secretary’s response, we find that Troy

Mine timely contested the proposed penalty assessment and, therefore, it did not become a final

order of the Commission. Accordingly, the request to reopen is dismissed as moot.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2182
Distribution:

Renee M. Guisewite, PHR

Troy Mine, Inc. 

P.O. Box 1660

Troy, MT 59935

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2183
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. WEVA 2011-1900-M

v. : A.C. No. 46-06034-247760

:

FERRELL EXCAVATING CO., INC. :

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (“Mine Act”). On June 7, 2011, the Commission received from Ferrell

Excavating Co., Inc. (“Ferrell”) a motion seeking to reopen a penalty assessment that had

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

815(a).

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

The record indicates that the proposed assessment was delivered on March 2, 2011, and

became a final order of the Commission on April 1, 2011. The motion to reopen was filed within

33 FMSHRC Page 2184
30 days of receiving the delinquency notice. Ferrell asserts it timely contested the penalty

assessment and provided the United States Postal Service (“USPS”) tracking number of the

contest form. 

The Secretary does not oppose the request to reopen. However, the Secretary notes that

the Mine Safety and Health Administration (“MSHA”) has no record of the March 9, 2011

contest form. Moreover, the Secretary submits that the USPS online tracking site has no record

of the tracking number provided by the operator. 

33 FMSHRC Page 2185
Having reviewed Ferrell’s request and the Secretary’s response, in the interests of justice,

we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further

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

2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of

penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2186
Distribution:

Vernon P. Ferrell

Ferrell Excavating Company, Inc.

P.O. Box 367

Pecks Mill, WV 25547

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2187
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 26, 2011

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA) :

: Docket No. WEVA 2011-2107

v. : A.C. No. 46-09060-253336

:

TEN-MILE COAL COMPANY, INC. :

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2006) (“Mine Act”). On July 21, 2011, the Commission received from Ten-Mile

Coal Company, Inc. (“Ten-Mile”) a motion seeking to reopen a penalty assessment that had

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

30 U.S.C. § 815(a).

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect.

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

The record indicates that the proposed assessment was delivered on May 23, 2011, and

became a final order of the Commission on June 22, 2011. Ten-Mile mailed a contest to MSHA

33 FMSHRC Page 2188
two days late, on June 24, 2011. MSHA’s delinquency letter was mailed July 11, 2011, and the

motion to reopen was filed within 10 days, on July 21, 2011. Ten-Mile asserts its Office

Manager misplaced the assessment and only discovered it on June 23, 2011. The Office

Manager further states she believes this was the first contest filed untimely since the company

began operations in 2007, and that she has created a computer system for processing assessments

in the future. The Secretary does not oppose the request to reopen and notes that MSHA

received payment for the uncontested citations. 

33 FMSHRC Page 2189
Having reviewed Ten-Mile’s request and the Secretary’s response, in the interests of

justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for

further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R.

Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for

assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2190
Distribution:

Rebecca S. Cato, Secretary/Treasurer

Steyer Fuel Mining Company, Inc.

P.O. Box 549

Dellsolow, WV 26531

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2191
1

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

consolidate docket numbers WEVA 2009-1002 and WEVA 2009-1003, both captioned J & A

Trucking, and involving similar procedural issues. 29 C.F.R. § 2700.12. We note that the

penalty assessments at issue, as well as the public Data Retrieval System (“DRS”) maintained by

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

operator as “J.A. Trucking.”

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 28, 2011

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH : Docket No. WEVA 2009-1002

 ADMINISTRATION (MSHA) : A.C. No. 46-09085-158131 D679

 :

v. : Docket No. WEVA 2009-1003

 : A.C. No. 46-09085-161199 D679

J & A TRUCKING :

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

ORDER

BY THE COMMISSION:

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

§ 801 et seq. (2006) (“Mine Act”). On February 27, 2009, the Commission received from J & A

Trucking (“JAT”) a motion by counsel to reopen two penalty assessments that had become final

orders of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).1

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

33 FMSHRC Page 2192
See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

JAT states that it is a small family-owned trucking company, whose office functions are

handled on a part-time basis by Debra Whitlock, wife of the company manager. On July 24,

2008, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued

Proposed Assessment No. 000158131 to JAT, which the company states it intended to timely

contest and believed it had contested. JAT eventually discovered, however, that due to 

Mrs. Whitlock’s inadvertence or mistake, it had failed to file the contest form, and the

assessment became a final order on September 5, 2008.

On August 25, 2008, MSHA issued a second assessment to JAT, No. 000161199. JAT

asserts that it never received that assessment. It became a final order on October 18, 2008.

The Secretary of Labor opposes reopening either assessment. She states that JAT’s

explanation for failing to contest the first assessment is conclusory and thus does not establish a

basis for reopening. As for the second assessment, the Secretary states it was delivered to JAT’s

address of record, a post office box. However, when it was not claimed by JAT, it was returned

to MSHA two weeks later. The Secretary also objects to reopening on the grounds that JAT was

notified of the delinquency of the assessments in October and December 2008, respectively, yet

did not file its motion to reopen until late February 2009. Finally, the Secretary notes that JAT is

delinquent in paying four other assessments, totaling $12,578.

Having reviewed JAT’s request and the Secretary’s response, we conclude that JAT has

failed to provide a sufficiently detailed explanation for its failures to timely contest the proposed

penalty assessments. JAT’s explanation that it failed to file a timely contest to the first

assessment due to “inadvertence or mistake,” without any further elaboration, does not provide

the Commission with an adequate basis to justify reopening of the assessment. See, e.g., Eastern

Assoc. Coal LLC, 30 FMSHRC 392, 394 (May 2008); James Hamilton Constr., 29 FMSHRC

569, 570 (July 2007). With regard to the second proposed assessment, JAT’s motion was silent

on why the operator failed to retrieve it from its post office box.

In addition, in considering whether an operator has unreasonably delayed in filing a

motion to reopen a final Commission order, we find relevant the amount of time that passed

between an operator’s receipt of a delinquency notice and its subsequent filing of a motion to

reopen. See, e.g., Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009). Although the

Secretary’s response raised the issue that JAT failed to explain why, after it was informed of the

delinquencies, it took as long as it did to request reopening, the operator did not file a reply

providing an explanation. We encourage parties seeking reopening to provide further

information in response to pertinent questions raised in the Secretary’s response. See, e.g.,

Climax Molybdenum Co., 30 FMSHRC 439, 440 n.1 (June 2008).

33 FMSHRC Page 2193
Consequently, the operator also passed on the opportunity to provide an explanation for

why it had failed to pay other delinquencies. Moreover, according to the DRS, JAT has failed to

pay or contest additional penalties that were proposed after the time it filed its motion.

33 FMSHRC Page 2194
2

 While we are dismissing this motion without prejudice to allow the operator to remedy

its defects, an inadequately supported motion – particularly one which does not address the

Secretary’s objections raised in response to motion – is subject to dismissal with prejudice. 

Operators and their counsel are well advised to fully support their motions with affidavits and

other documentation and defend their requests for extraordinary relief from a final order.

Accordingly, we hereby deny without prejudice JAT’s request to reopen. Eastern Assoc.

Coal, LLC, 30 FMSHRC at 394; FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007); Petra

Materials, 31 FMSHRC 47, 49 (Jan. 2009). Should JAT choose to renew or amend its motion, it

should rectify the deficiencies outlined here, and use the opportunity to respond to the

Secretary’s statement regarding other assessments which JAT may be delinquent in paying.2

Any amended or renewed request by the operator to reopen these assessments must be filed

within 30 days of this order. Any such request filed after that time will be denied with prejudice.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2195
Distribution:

David J. Hardy, Esq.

Guthrie, & Thomas, PLLC

500 Lee Street, East, Suite 800

P.O. Box 3394

Charleston, WV 25333

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2196
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 28, 2011

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 : Docket No. WEVA 2010-1421

 : A.C. No. 46-09217-207483

v. :

 :

 :

INR-WV OPERATING, LLC :

 

 

 

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

ORDER

BY: Duffy, Young, and Nakamura, Commissioners

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

§ 801 et seq. (2006) (“Mine Act”). On August 2, 2010, the Commission received a motion by

counsel to reopen a penalty assessment issued to INR-WV Operating, LLC (“INR-WV”) that

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

§ 815(a).

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable

by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed

that default is a harsh remedy and that, if the defaulting party can make a showing of good cause

33 FMSHRC Page 2197
1

 In considering whether an operator has unreasonably delayed in filing a motion to

reopen a final Commission order, we find relevant the amount of time that has passed between

an operator’s receipt of a delinquency notice and the operator’s filing of its motion to reopen. 

See, e.g., Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009); Highland Mining Co., 31

FMSHRC 1313, 1316-17 (Nov. 2009) (holding that motions to reopen filed more than 30 days

after receipt of notice of delinquency must explain the reasons why the operator waited to file a

reopening request, and lack of explanation is grounds for the Commission to deny the motion). 

2

 If INR-WV submits another request to reopen, it must establish good cause for not

contesting the proposed penalties within 30 days from the date it received the assessment from

MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, the existence of “good

cause” may be shown by a number of different factors including mistake, inadvertence, surprise,

or excusable neglect on the part of the party seeking relief, or the discovery of new evidence, or

fraud, misrepresentation, or other misconduct by the adverse party. INR-WV should include a

full description of the facts supporting its claim of “good cause,” including how the mistake or

other problem prevented it from responding within the time limits provided in the Mine Act, as

(continued...)

for a failure to timely respond, the case may be reopened and appropriate proceedings on the

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

On December 30, 2009, the Department of Labor’s Mine Safety and Health

Administration (“MSHA”) issued Proposed Assessment No. 000207483 to INR-WV. INR-WV

asserts that, although the contest form was received and signed for by an individual in its Human

Resources Department, it was mistakenly never delivered to its Safety Director for contest.

The Secretary opposes INR-WV’s request to reopen because its explanation is

conclusory and because an unreliable internal procedure does not provide adequate grounds for

reopening. The Secretary also notes that a delinquency notice was sent to the operator on April

8, 2010, more than three and a half months before it filed its reopening request, and the case was

referred to the Treasury Department for collection on July 8, 2010. She also submits that in

March 2010, INR-WV sought reopening in two other cases (Docket Nos. WEVA 2010-788 and

WEVA 2010-810), which underscores the breakdown in the operator’s internal procedures. The

Secretary further asserts that during the preparation of the March motions to reopen, the operator

or its counsel should have learned that this case had also become a final order that was

delinquent.

Having reviewed INR-WV’s request to reopen and the Secretary’s response thereto, we

agree that the operator has failed to provide a sufficient basis for the Commission to reopen the

penalty assessment. In particular, INR-WV has failed to adequately explain why it delayed

approximately three and a half months in responding to the delinquency notice sent by MSHA.1

Accordingly, we hereby deny without prejudice INR-WV’s request to reopen. FKZ Coal Inc.,

29 FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). The

words “without prejudice” mean that INR-WV may submit another request to reopen the

assessment.2 Any amended or renewed request by the operator to reopen this assessment must

33 FMSHRC Page 2198
2 (...continued)

part of its request to reopen. INR-WV should also submit copies of supporting documents with

its request to reopen and specify which proposed penalties it is contesting. INR-WV should

further include an explanation for why the operator waited so long to file for reopening after

receipt of the notice of delinquency. Finally, INR-WV should specify exactly which penalties

contained on the assessment it wishes to contest. 

be filed within 30 days of this order. Any such request filed after that time will be denied with

prejudice.

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2199
Chairman Jordan and Commissioner Cohen, dissenting:

Because the operator’s explanation for the late-filed penalty contest lacks specific

information, and because there was a delay of approximately three and a half months from the

operator’s receipt of the delinquency notice until the motion to reopen was filed, we would deny

this motion with prejudice.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

33 FMSHRC Page 2200
Distribution:

Matthew H. Nelson, Esq.

Dinsmore & Shohl, LLP

215 Don Knotts Blvd., Suite 310

Morgantown, WV 26501

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2201
1While other matters were included in the petition for discretionary review, to the extent

that the operator’s petition asked for review of additional issues beyond those discussed in this

order, we do not reach those issues. In light of our decision to remand, other issues raised by Jet

Materials, including the Secretary’s late filing of the petition, need to be considered, in the first

instance, by the administrative law judge. 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

September 30, 2011

SECRETARY OF LABOR, : Docket Nos. CENT 2010-702-M

 MINE SAFETY AND HEALTH : CENT 2010-1296-M

 ADMINISTRATION (MSHA) : CENT 2010-1297-M

: 

v. : 

 : 

JET MATERIALS :

 

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

ORDER

BY THE COMMISSION:

These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30

U.S.C. § 801 et seq. (2006) (“Mine Act”). 

On August 24, 2011, Administrative Law Judge L. Zane Gill issued a Default Order

entering judgment in favor of the Secretary of Labor and ordering Jet Materials to pay civil

penalties of $6,452, $10,000, and $1,671. On September 6, 2011, the Commission received a

letter from James Thompson, the former owner of Jet Materials, requesting that the default order

be set aside.1 We construe the letter to be a petition for discretionary review. On September 26,

2011, the Secretary filed an opposition to the petition for discretionary review. For the reasons

that follow, we grant the petition, vacate the judge’s order, and remand for further proceedings

consistent with this order. 

The judge issued a prehearing order on April 20, 2011. The order required the parties to

confer regarding the possibility of settlement, to provide a status report, and, if no settlement was

reached, to initiate a conference call to set a date and location for the hearing.

On July 22, 2011, the Commission received the Secretary’s motion for default judgment.

The motion asserted that most of the Secretary’s attempts to reach Jet Materials had been

unsuccessful and that Jet Materials had failed to comply with the judge’s prehearing order by 

33 FMSHRC Page 2202
failing to participate in a conference call with the judge and the Secretary’s representative to set

a date and location for the hearing. Without further proceedings, the judge granted this motion

on August 24, 2011.

The Commission’s procedural rule concerning orders of default, Rule 66, 29 C.F.R. 

§ 2700.66, provides that:

(a) Generally. When a party fails to comply with an order of a Judge or

these rules, except as provided in paragraph (b) of this section, an order to

show cause shall be directed to the party before the entry of any order of

default or dismissal. The order shall be mailed by registered or certified

mail, return receipt requested.

(b) Failure to attend hearing. If a party fails to attend a scheduled hearing,

the Judge, where appropriate, may find the party in default or dismiss the

proceeding without issuing an order to show cause.

 

Thus, our rule requires that prior to issuing an order of default, a judge must issue a show

cause order unless the party fails to attend a hearing. See Secretary of Labor v. Reb Enterprises,

Inc., 18 FMSHRC 311 (March 1996); Patsy v. Big “B” Mining Co., 16 FMSHRC 1937, 1938

(September 1994). Here, the judge did not issue an order to show cause before he entered the

default order, as required by Rule 66(a). A party’s failure to attend a scheduled conference call

with the judge, although objectionable, is not the equivalent of failure to attend a “scheduled

hearing” so as to obviate the need for an order to show cause pursuant to Rule 66(b). 

33 FMSHRC Page 2203
2

 To avoid further sanctions, Jet Materials needs to respond to all contacts by the

Secretary and judge, and attend all scheduled conferences and hearings.

Accordingly, for the reasons set forth above, Jet Materials’ petition for discretionary

review is granted. The default order is vacated, and the case is remanded to the judge for further 

proceedings in accordance with the Commission’s procedural rules.2

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael F. Duffy 

Michael F. Duffy, Commissioner

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

33 FMSHRC Page 2204
Distribution

James Thompson

P.O. Box 385

Maynard, AZ 72444

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

US Department of Labor

1100 Wilson Blvd. 25th Floor

Arlington, VA 22209

Administrative Law Judge L. Zane Gill

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20001-2021

33 FMSHRC Page 2205
33 FMSHRC Page 2206
ADMINISTRATIVE LAW JUDGE DECISIONS

1 All dates are in 2011, unless otherwise indicated. 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, D.C. 20001-2021

Telephone: (202) 434-9958

Fax: (202) 434-9949

September 2, 2011

PINNACLE MINING COMPANY,

 Contestant

v.

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Respondent

 :

 :

 :

 :

 :

 :

 :

 :

 :

CONTEST PROCEEDING

Docket No. WEVA 2011-1758-R

Order No. 4201901; 05/20/2011

Mine: Pinnacle Mine

Mine ID: 46-01816

DECISION AND ORDER

Appearances: R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, 401

Liberty Avenue, Suite 1340, Pittsburgh, Pennsylvania 15222, for

Contestant

Samuel Charles Lord, Esq., U.S. Department of Labor, 1100 Wilson

Boulevard, 22nd Floor West, Arlington, Virginia 22209, for Respondent

Judith Rivlin, Esq., United Mine Workers of America, 18354 Quantico

Gateway Drive, Suite 200, Triangle, Virginia 22172, for Intervenor

Before: Judge McCarthy

I. Statement of the Case

This case is before me on a Notice of Contest filed by Pinnacle Mining Company, LLC

(“Pinnacle” or “Contestant”) pursuant to sections 105 of the Federal Mine Safety and Health Act

of 1977, 30 U.S.C. §§ 815 (the “Mine Act”). Order No. 4201901 was issued to Contestant on

May 20, 2011,1

 pursuant to section 103(j) of the Federal Mine Safety and Health Act of 1977

(“the Act”), 30 U.S.C. § 813(j). On May 25, the Order was modified to a Section 103(k) Order. 

On May 25, Respondent filed a Notice of Contest, and a Motion to Expedite, pursuant to

29 C.F.R. 2700.52. On May 26, Contestant gave notice that it was withdrawing its request for

an expedited hearing, but not its Notice of Contest. On May 26, the undersigned issued an Order 

Approving Contestant’s Motion to Withdraw Its Motion to Expedite. 

On June 27, after several modifications to the 103(k) Order and after unsuccessful

negotiations with MSHA, Respondent filed its Renewed Motion to Expedite. An expedited

33 FMSHRC Page 2207
2 See Stip. 31-35. References to the parties’ stipulations are designated “Stip.” 

References to the Secretary’s Exhibits are designated “G. Ex.” References to Pinnacle’s

Exhibits are designated “C. Ex. or R. Ex” References to Joint Exhibits are designated “Jt. Ex.”

References to the transcript of the hearing are designated “Tr.”

3 In resolving conflicts in testimony, I have taken into consideration the demeanor of the

witnesses, their interests in this matter, the inherent probability of their testimony in light of

other events, corroboration or lack of corroboration for testimony given, experience and

credentials, and consistency or lack thereof within testimony of witnesses and between the

testimony of witnesses. 

hearing was held on July 13. The parties stipulated to jurisdictional issues.2

 Post-hearing briefs

were filed on August 1. 

The issues presented by the contest are twofold: Whether the Section 103(k) order was

improperly issued because no accident occurred, and whether MSHA’s refusal to modify the

103(k) order to permit re-entry of the mine and re-ventilation of the longwall was unreasonable

or arbitrary and capricious? 

On the entire record, including my observation of the demeanor of the witnesses,3 and

after considering the post-hearing briefs, I make the following: 

II. Findings of Fact

Pinnacle’s Longwall Mining Operations

Pinnacle Mining Company, LLC, owned by Cliffs Natural Resources, operates a large

underground coal mine that contains numerous mined-out longwall panels, an active longwall

section, and multiple continuous miner sections to develop future longwall gate entries. G. Ex.

2. Basically, under the Pinnacle longwall mining system, two parallel gate entries, i.e., the

headgate and tailgate, are developed and connected to another set of entries at the back to form a

longwall panel that is typically 800 to 1,200 feet wide and several thousand feet long. Tr. 60. A

mining machine or “plow” advances outby incrementally across the width of the longwall panel

to cut and extract the coal, which falls onto a conveyor system for transport out of the mine. Tr.

60, 180. As cutting occurs, mechanized roof supports or “shields” advance behind the longwall

face, and as the shields advance, the roof above the mined-out coal seam falls. This area where

the coal has been extracted and the roof has fallen is called the “gob.” Tr. 60.

The Pinnacle Mine is a gassy mine that liberates in excess of one million cubic feet of methane

per day. Methane is explosive in the range of 5 to 15 percent of mine atmosphere, with at least

12 percent oxygen. Tr. 61. The Pinnacle Mine is subject to methane spot inspections every five

days under Section 103(i) of the Act. 30 U.S.C. § 813(i). Multiple fans are used to ventilate the

mine, including the ASCO fan, which is located in back of the longwall bleeders and serves as a

bleeder fan. Stip. 2; G. Ex. 6.

33 FMSHRC Page 2208
1 The record reflects that carbon monoxide is a gas that may occur at different levels for

several reasons in a mine, including use of diesel equipment, heat-generating friction along a belt

line, oxidation of carbonaceous materials like wood, or the combustion of coal during a mine

fire. Tr. 145-46, 205, 310-11. 

The Unusual Carbon Monoxide Buildup on May 19

On May 19, Pinnacle was operating a longwall mining unit in the 9F panel. Stip. 1. The

block of coal was located between the 9E entries on the tailgate side and the 9F entries on the

headgate side. Stip. 1; G. Exs. 3 and 4. The 9E entries consisted of three separate entries with

the No. 3 entry immediately adjacent to where the longwall panel removed coal. G. Exs. 3 and

4. The 9F longwall panel is 65 crosscuts in length, and the longwall unit was currently mining

between crosscuts 56 and 55. The area of the longwall panel behind the longwall unit from

crosscuts 56 through 65 was gob. G. Exs. 3 and 4. Between crosscuts 56 and 65, the No. 3

entry was inaccessible because the longwall unit had already advanced beyond those locations

and the roof had collapsed behind it. Tr. 73, 355.

At various times during the day on May 19, levels of carbon monoxide (CO) in the range

of 12-32 parts per million (ppm) were detected on handheld gas detectors by various Pinnacle

examiners in crosscut Nos. 59-63 between the No. 2 and No. 3 entries in the 9E entries in the

longwall gob area. Stip. 3; Tr. 224-26.1

 Pinnacle claims this is a low level of CO (Tr. 101), in

areas of low air flow (Tr. 161-62; G. Ex.4), and that CO readings were lower in areas with more

air flow inby and outby (G. Exs. 4 and 9). Mark Nelson, the mine’s general manager, testified

that CO readings of 12 to 26 ppm are “not typically encountered by our examiners” and the CO

readings of May 19 gave mine managers a “signal that we may have an issue.” Tr. 226. In fact,

the event prompted management to withdraw miners from the longwall area and shut off power

to the section as required by a provision in the operator’s MSHA-approved ventilation plan. 

Mine management subsequently evacuated the entire mine. MSHA and State (WVOMHST)

representatives were contacted prior to 10 p.m. on May 19. Stip. 3; Tr. 226. 

The 103(j) and 103(k) Orders

MSHA issued a verbal order pursuant to Section 103(j) at 10:15 p.m. on May 19. Stip. 3.

The written Order, No. 4201901, was issued on May 20, pursuant to section 103(j) of the Act,

30 U.S.C. § 813(j). The Order alleges the following “Condition or Practice:” 

An event has occurred on the sites MMU (Longwall mining section) whereas

approximately 22 parts per million Carbon Monoxide has been detected. This CO

was measured between the No. 2 + No. 3 crosscut inby the Longwall tail. This

order was initially issued verbally to the operator and is now being reduced to

writing. This order is intended to protect all miners on site, including those

involved in rescue + recovery of operations or investigation of this event. Also,

this order is to prevent the destruction of evidence that would aid in investigation

of the accident. 

Stip. 5. 

33 FMSHRC Page 2209
2 These modifications include the following:

5/20 affected area left blank on initial order

5/23 allowed longwall underground area evaluation

5/24 allowed sampling tubes to be installed underground for 

surface monitoring of 9E, 61 & 62 crosscuts

5/25 allowed installation of CH4 & CO monitors at ASCO fan

5/26 allowed installation of breaker on pump at 54 break

5/27 allowed sampling of 8S gob area and restoration of power

to pumps

5/27 allowed water to be pumped through 9-F borehole

5/31 allowed completion of 8R deep well and maintenance at 99 

break

6/6 established written plan for examinations

6/6 allowed pumping of nitrogen and carbon dioxide for gob 

inertion

6/10 allowed mine rescue members to examine temporary seals

6/11 allowed installation of temporary seals at 9E & 9F

6/15 allowed repair work to slope belt from surface location

6/17 allowed mine rescue members to examine temporary seals

On May20, at 3:30 a.m., the Order was modified to a Section 103(k) Order, which

alleged as follows:

The initial order is modified to reflect that MSHA is now proceeding under the

authority of Section 103(k) of the Federal Mine Safety and Health Act of 1977.

This Section 103(k) order is intended to protect the safety of miners on site,

including those involved in the rescue and recovery operations or investigations

of the event. The operator shall obtain prior approval from an Authorized

Representative of the Secretary for all actions to recover and/or restore operations

in the affected area.

Additionally, the mine operator is reminded of its existing obligation to prevent

the destruction of evidence that would aid in investigating the cause or causes of

this event. 

Stip. 7. 

There have been a number of subsequent modifications to the 103(k) Order, but

none has allowed production to resume. Stip 9.2

 MSHA officials determined that the

CO readings that had been reported by Pinnacle on May 19 were elevated and cause for

concern since they exceeded ambient levels of 1 to 2 parts per million (“ppm”), which

MSHA inspectors normally encountered. Tr. 215.

Extensive Sampling and the Retention of Experts

On the morning of May 20, MSHA consulted with John Urosek, Chief of Mine

Emergency Operations, for expert guidance and opinion regarding MSHA’s response to

33 FMSHRC Page 2210
3

 The samples, other than from handheld detectors, were analyzed by use of a gas

chromatograph. The parties stipulated that discrepancies between handheld detector readings

and actual sample lab results were attributable to higher level hydrocarbons in areas being

sampled. Stip. 10. 

developments at the Pinnacle Mine. Tr. 51, 83; G. Ex 1. Urosek is a mining engineer,

who graduated from Pennsylvania State University in 1979. He is a registered

professional engineer in Pennsylvania. Tr. 52;G. Ex 1. He has responded to most of the

nation’s major mine disasters during the past thirty-five years, including seventy-four

mine emergencies, most of which involved mine fires or explosions. G. Ex. 1. In

addition, Urosek is a former Chief of MSHA’s Ventilation Division, who has conducted

sixty-six investigations into mine ventilation systems in an effort to ensure that harmful

dust and gas are ventilated out of working faces and mined-out gob areas. Id. Urosek

has frequently testified as an expert witness for MSHA, and he has made numerous

presentations on mine ventilation and emergencies. Id. He responds as needed to any

fire, explosion or inundation in U.S. mines, and directs MSHA efforts in such emergency

scenarios. Tr. 51-52. At the hearing, he was qualified as an expert in mine ventilation,

fires and emergencies. Tr. 55. 

On May 20, sampling at the ASCO fan commenced and no CO was detected. 

Stip. 6. No gases indicative of a fire, such as ethylene or propylene, were detected. Tr.

235-36; G. Ex. 5. At 5 a.m. on May 20, MSHA and Pinnacle representatives went

underground and collected “bag samples” of the atmosphere from crosscuts 59 through

63. Stip. 8. The parties stipulated that bag sampling provides a more reliable analysis of

CO levels than handheld detectors, assuming the samples were collected properly. Stip.

10. 

The May 20 bag samples confirmed CO levels of 13 ppm in crosscut 62 between

the No. 2 and former No. 3 entries. G. Ex. 5. The bag sample from crosscut 62 also

showed over 10 percent methane, well into the explosive range given the 18 percent

oxygen present. G. Ex. 5. Meanwhile, samples taken from other areas of the longwall

panel, including the bleeder shaft and the longwall face, contained no detectable amounts

of CO. G. Ex. 5. 

Urosek reviewed the bag samples of May 20. Tr. 85. He was concerned about

the 13 ppm of CO in crosscut 62, which came from somewhere in the mine. He initially

thought that the single sample could have been taken in error or had been analyzed

incorrectly. Tr. 85-88. 

Three days later, on May 23, results of bag sampling conducted by MSHA again

confirmed the presence of CO in crosscuts 59 through 62, including 13 ppm (versus 40

ppm on the handheld unit) in the presence of an explosive quantity of methane in crosscut

61. Tr. 93; G. Ex. 8; Stip 10.3

 Samples from other crosscuts revealed 0-5 ppm CO

levels. Stip. 10; G. Ex. 9. No detectable amounts (NDA) of CO were present in other

sampled areas of the 9F panel, including six samples from the longwall face and eleven

samples from the headgate entries. Tr. 91-92; G. Exs. 6 and 7. 

33 FMSHRC Page 2211
Based on the May 23 sampling from crosscut 61 (G. Ex. 8), Urosek concluded

that the May 20 sample of 13 ppm of CO in crosscut 62 was not the result of sampling

error, and given the mix of greater than 5.51 percent methane and 19.2 percent oxygen in

crosscut 61 on May 23, there was an explosion hazard present in this area. Tr. 93-95. 

On May 23 or 24, Pinnacle retained Robert Lincoln Derick as a consultant and expert,

and began including Derick in meetings with MSHA, WVOMHST, and the United Mine

Workers of America (UMWA). Tr. 308. Derick has been involved in responses to

twelve mine emergencies, all west of the Mississippi. Tr. 299; C. Ex. 1. Ten of those

twelve emergencies involved mines prone to spontaneous combustion. The parties

stipulated that the Pinnacle Mine was not a spontaneous combustion mine. Tr. 300; 302-

303. All of Derick’s writings on mine fires were based on his experiences at a

spontaneous combustion mine (Orchard Valley) back in 1986. Tr. 300-01; C. Ex. 1, p. 2. 

Unlike Urosek, Derick is not a mining engineer. Tr. 297. 

On May 23, MSHA, WVOMHST, and Pinnacle representatives revisited the

underground longwall area and increased the sampling locations for 9F and 9E along the

gob line and longwall face. Stip. 11. On the evening of May 24, MSHA and Pinnacle

personnel re-entered the longwall to establish sample lines at crosscut Nos. 61 and 62,

which could be monitored from the surface. Stip. 12. Other sampling sites were

established at the ASCO bleeder fan at the top of the 9F entries, at the 9F-1

degasification hole above the longwall gob, and, since June 10, at crosscut 53 of the 9E

entries. Stip. 20; G. Ex. 9 (complete sampling results as of July 8, five days before the

hearing). Each of these locations have been sampled several times a day by MSHA and

Pinnacle. G. Ex. 9; Tr. 101-102. 

MSHA’s samples were evaluated at MSHA’s Mt. Hope facility in West Virginia

and Pinnacle’s samples were evaluated at Phoenix First Response lab in Glassport,

Pennsylvania. Stip. 13. To verify the levels of CO sampled, MSHA retested certain

samples at its Pittsburgh laboratory. Tr. 101. Urosek testifed that MSHA’s and

Pinnacle’s sampling was substantially consistent. Tr. 101. Pinnacle does not challenge

the accuracy of MSHA’s bag sample results, just the comparisons that were made for

determination of the ambient level of CO. The sample results consistently show

heightened CO levels in the tailgate side of the 9F longwall panel at crosscut 61 until

temporary seals were installed on June 12. No fire gases, such as ethylene (C2H2) or

acetylene (C2H4), were capable of being detected with current technology. G. Ex. 9; Tr.

119-121. 

The Water Pumping Operation through the 9F-1 Degasification Borehole 

On May 31, Pinnacle devised a plan to flush water down the 9F-1 degasification

borehole in an effort to cool any potential “hot spot” near the mine floor. Stip. 14. 

Ideally, the water would spray out over the gob, saturating the material, and then flow

toward the lowest point of the tailgate at about crosscut 50 (Tr. 241-42, 275, 282, 309-10;

Jt. Ex.1, Attachment E). Pinnacle concluded that there was a “chance” that the water

would run through the area of the gob near the 59-62 crosscuts on its way to a lower

elevation outby near crosscut 50 (Tr. 275-276), but there was little expectation that the

33 FMSHRC Page 2212
4

 Upon questioning from the bench, however, Derick acknowledged the potential, albeit

unlikely, scenario that combustion or ignition occurred during torch cutting and welding on or

about April 20 on the headgate side near the longwall entry of the 9E. Tr. 260; cf. Tr. 239, 308. 

water actually would pool in the area of any potential “hot spot,” and Pinnacle could not

determine with certainty that the water ever reached the targeted area of the gob. Tr. 241,

310, 316. 

On June 4, the pumping operation was completed and about 1.89 million gallons

of water had been injected down the 9F-1 surface borehole into the gob area. Stip. 17. 

The CO levels from the array of sampling tubes in the longwall gob did not change as a

result of the injection of such water. Tr. 260; G. Ex. 9. 

About early June, Urosek learned during face to face questioning of operator

representatives that they had encountered an odd odor around the 61 and 62 crosscuts

during initials visits to the area on May 19. Tr. 191-193. MSHA inspector Jerry Cook

and Pinnacle general manager Nelson confirmed the “unusual” and “unique” smell. Tr.

194-195, 228, 230. Urosek credibly testified that he specifically asked mine personnel if

there had been an unusual smell based on an incident “from personal experience [at

another mine] . . . where [he] actually smelled heating and was downwind of it and saw

that it was a fire, [he] noticed an unusual smell.” Tr. 193. Apart from the unusual smell,

however, no smoke, haze, or recognizable burning or sulfur odor was reported at the

Pinnacle Mine. Tr. 195, 227-28. 

Pinnacle claims that there was no event which triggered a rise in the CO levels

(Tr. 238). There was no lightning strike, and no cutting and welding in the vicinity of the

tailgate (Tr. 238).4

 In addition, there was no smoke or smell of burning (Tr. 227-28, 230,

232-33). Furthermore, the coal at Pinnacle is not susceptible to spontaneous combustion

(Tr. 302-03), and the sampling did not show evidence of gases associated with burning

(Tr. 235-36). 

Pinnacle further notes that CO can be released by normal oxidation, which is not

necessarily accompanied by a detectable rise in temperature. Tr. 310. Moreover, the

supplemental support in the No. 3 entry of the tailgate consists of wooden cribs, some of

which is older wood in poor condition. Tr. 233-34. Pinnacle notes that the decay of

wood can result in the release of CO. Tr. 311. 

Inert Gas Injection Before and After Sealing

On June 7, because there was no change in the CO readings after the deluge of

water, Pinnacle developed a plan to partially inert the gob area with a gas injection

mixture of carbon dioxide (CO2) and nitrogen (N2) under reduced ventilation pull from

the ASCO fan. Stip. 18; Tr. 244. Between June 7 and June 10, this injection of inert

gases – 4.8 cubic feet of CO2 and 5.1 cubic feet of N2 – failed to achieve lasting

reductions in the targeted CO levels. Stip. 18-19. During this period of inert gas

33 FMSHRC Page 2213
injection, the gate entries of the 9F panel were not sealed off from the mine ventilation

system, and oxygen levels at the sampling sites remained above 16 percent (G. Ex. 9), a

level sufficient to sustain any smoldering gob fire. G. Ex. 20. 

With MSHA approval, Pinnacle then moved from partial inertion of the gob to

full inertion of the gob. Tr. 244. On June 11, MSHA approved Pinnacle’s construction

of temporary seals between the Nos. 4 and 5 crosscuts across the mouths of the 9E and

9F entries. Stip. 21. On June 12, shortly after 5:00 a.m., the ASCO fan was turned off

and final temporary seals, i.e. ventilation curtains, were completed. At 11 a.m., CO2

injection recommenced via the 9F-1 borehole. Nitrogen injection recommenced into the

capped ASCO fan shaft. Stip. 22. On June 13, an inert state for methane ignition was

achieved for all sampling locations. This was defined as less than 10% oxygen, a level of

oxygen that is 2% below the amount necessary to ignite methane. Stip. 23; Tr. 167-68. 

As a result, oxygen levels and CO levels began to fall. G. Exs. 11 and 12. On June 17,

oxygen levels decreased to 7% or below at all sampling locations. Stip. 24. CO2

continued to be injected on June 18 and 19. Stip. 25- 26. The injection of inert gases

such as CO2 and N2 reduced the percentages of other gases such as oxygen and CO, as

the injection occurred. Tr. 167. On June 20, Pinnacle requested modifications of the

103(k) Order to evaluate necessary repairs for the ASCO fan. Stip. 27. 

Pinnacle’s June 21 Plan to Re-Ventilate the Longwall Area

On June 21, less than ten days after completion of the temporary seals, Pinnacle

gave MSHA its plan (Jt. Ex. 1) to re-ventilate the longwall area. Stip. 21. Pinnacle’s

request stated, as follows:

Please find attached a summary review of all actions and information

collected May 19, 2011 through June 20, 2011 which are being used as the

basis for requesting the Pinnacle Mine be permitted to re-establish ventilation

to the 9F longwall mining area, conduct a thorough examination of this area

once the atmosphere is stabilized, and upon no adverse findings or sudden

changes in atmospheric samples to resume normal mining operations.

From the initial finding of slightly elevated carbon monoxide levels near the

longwall gob area, Cliffs management has taken the initiative in our

conservative approach to the situation and working with agencies in remedial

efforts to eliminate the potential for a heating/combustion type event. Even

with no signs of an actual event, management completed an exhaustive

number of projects (intake air, flooding, inert gases, gas chromatographic gas

analysis, etc) in order to ensure there were no heating activities and therefore

ensuring the safety of our employees prior to their return to work.

The attached supporting data reflects a steady carbon monoxide level despite

the various efforts over the last 32 days. And while no prior baseline data is

available, samples collected from underground locations, as well as the 9F-1

surface degas borehole demonstrate levels of hydrogen, methane, ethane,

carbon monoxide, and other higher hydrocarbons to be naturally occurring in

this current longwall gob/surface borehole area.

33 FMSHRC Page 2214
We are requesting that re-ventilation of the longwall commence on June 22,

2011, with underground sampling locations having been inert for in excess of

9 days by this time.

 MSHA’s Rejection of Pinnacle’s Plan

On June 23, Derick and Pinnacle personnel met with Urosek and MSHA personnel and

with representatives of the UMWA and the state of West Virginia concerning Pinnacle’s request

to re-ventilate the longwall area, perform examinations and resume operations if no abnormal

conditions were found. MSHA orally denied Pinnacle’s request. Stip. 29. Gas samples

indicated that oxygen levels had not stabilized and were still trending downwards, and CO levels

remained elevated at up to 11 ppm. G. Exs. 9, 11 and 12.

MSHA declined to approve Pinnacle’s plan primarily because of disagreement over the

ambient level of CO and the provision that delayed withdrawal of miners in the unsealed area

until carbon monoxide levels reached 25 ppm. In addition, MSHA did not agree that the CO was

a naturally occurring condition, and the 8-hour waiting period proposed after reventilation fell

far short of MSHA’s typical 72-hour period. Tr. 119. MSHA also rejected the specifics of

Pinnacle’s June 21 plan to re-ventilate, re-enter and evaluate the longwall area, and resume

operations, as set forth in Jt. Ex. 2, p. 11. 

By letter dated, June 30, MSHA set forth the written basis for its denial of Pinnacle’s

June 21 request. Jt. Ex. 2. 

This is in response to your request sent by email on June 23, 2011, at 3:56 pm

requesting a letter regarding the denial of your action plan to re-ventilate and examine the

longwall area at the Pinnacle mine. During the 1:00 pm meeting on June 23, 2011,

concerns with re-ventilating the mine so soon following the inerting process were

discussed.

Those same concerns would apply to your plan to re-enter the mine dated June 21,

2011. Therefore, your request to modify the 103(k) to implement this action plan cannot

be granted for the following reasons:

! Uncertainty as to the origin of the carbon monoxide (CO) concentrations.

! Samples collected from another longwall panel within the mine on

5/27/2011 indicated limited carbon monoxide concentrations (1 ppm).

! Numerous samples collected from the 9F1 degasification borehole in

another longwall panel from another area of the mine (8Q5) indicated

carbon monoxide concentrations of 4-5 ppm.

! Samples collected in crosscuts along the perimeter of the worked-out area

of this longwall panel on the headgate side and in the tailgate side outby

59 crosscut indicated 0 ppm CO.

! Carbon monoxide was not detected in the face area when elevated

methane concentrations were detected due to the inundation of floor gas. 

However, carbon monoxide was detected in the tailgate crosscuts inby the

33 FMSHRC Page 2215
face. This raises the concern that the carbon monoxide is not associated

with higher concentrations of methane.

! This mine has a history showing the correlation between low

concentrations of CO and subsequent explosions. Samples collected from

another longwall bleeder system within the mine following re-ventilation

of a sealed area after a series of events, fires and explosions, in 2003

indicated limited CO. Prior to sealing of this longwall panel, multiple

explosions occurred in the mine when low concentrations of CO were

being detected.

! The number and location of all ignition sources in the temporarily sealed

area are unknown. Air sample analysis indicates portions of the sealed

area were explosive when collected.

! The oxygen concentrations were not below 4 percent for all sampling

locations for any significant length of time following the installation of the

temporary seals when last sampled.

! Even though the oxygen concentrations have been decreasing, it appears

the carbon monoxide concentrations have not stabilized. However,

sufficient time has not expired in which a definitive determination could

be made.

! The proposed procedure to restart the Asco fan and then sending miners

underground to remove the temporary seals would expose miners to the

hazards associated with moving explosive mixtures over an ignition

source.

! The plan does not allow enough time for the mine to stabilize following a

major change to the ventilation system.

! The plan does not discuss the criteria to evaluate the atmosphere during

that time period before miners re-enter the mine for examination.

! As previously stated, the proposed levels of carbon monoxide are not

acceptable. Ambient levels in the active mine appear to be on the order of

2 ppm or less. The carbon monoxide action level of 25 parts per million

greatly exceeds the ambient level for this mine.

! The phrase “Pending no significant negative changes” is too vague to

comprehend.

! There is no additional monitoring of the mine atmosphere proposed once

the initial evaluation of the longwall area is completed.

The Parties’ Primary Disagreement Over the CO Level Triggering Withdrawal, 

and the Appropriate Length of Time Before Unsealing

It is undisputed that since late May or early June, MSHA held several meetings

and engaged in good faith negotiations with Pinnacle. Tr. 40, 117, 192. The

primary point of disagreement between the parties involved Pinnacle’s plan to

withdraw miners after re-ventilation when CO levels reached 25 ppm. Jt. Ex. 1,

p. 11; Tr. 40-41, 132-137. MSHA could not agree to Pinnacle’s plan because 25

33 FMSHRC Page 2216
5

 As noted, Pinnacle’s June 21 plan contained an action level of 25 ppm of CO. Jt. Ex. 1. 

In its post-hearing brief, Pinnacle represents that its most recent plan submitted on July 19,

included an action level of 15 ppm. That plan, however, apparently submitted a week after the

expedited hearing on July 13, is not in evidence, and therefore not before me. I note that I

encouraged the parties to simultaneously pursue two tracks, a litigation track and a settlement

track during the luncheon recess, despite counsel’s assertion that the parties were already at

impasse. Tr. 33, 41. 

6

 In its post hearing brief, Pinnacle states that the seals were removed first by mine rescue

team members, before the ASCO fan was restarted. Pinnacle replaced the curtains used as

temporary seals with metal stoppings. Tr. 246-47. The metal stoppings have since been

replaced by 50 psi seals. Tr. 147, 150, 268. 

ppm was ten times higher than what MSHA considered to be the ambient level of

1 to 2 ppm. Tr. 137.5

 

In addition, during discussions with Pinnacle, Urosek opined that it was “too

early” to unseal the area because once oxygen was reintroduced, any fire that existed in

the gob area could be rekindled, and as CO readings rose, the efforts to monitor and quell

any potential heating or smoldering gob fire through sealing “would be wasted.” Tr. 124. 

Urosek credibly testified that there is an inherent uncertainty upon re-ventilating an area

where a suspected gob fire cannot be seen, and if any smoldering fire is not extinguished

when the oxygen reaches it, CO levels will begin to grow, and if sufficient methane

reaches the hot spot before resealing can take place, an explosion may occur. Tr. 125-

126. Urosek further testified about past mine fires that were unsealed too soon, including

the Galatia Mine fire in Galatia, Illinois in 1996 and the VP-5 Mine fire in Vansant,

Virginia in 1982, which caused rekindling of a diminished fire and led to explosions. Tr.

125-126; Tr. 154; G. Ex. 19, p. 4. 

Furthermore, a gob fire at the Pinnacle Mine in 2003 generated a series of

explosions, even with relatively low levels of CO at the 0 to 17 ppm range. Tr. 150; G.

Ex. 19, p. 1; G. Ex. 21 (PowerPoint); R. Ex. 2, p. 30 (Powerpoint). Specifically, in early

September 2003, a gob fire caused a series of explosions and nine months of lost

production at the Pinnacle mine. The mine successfully resumed normal operations after

remaining under seal for nearly two months from March until May 2004. Tr. 150-154;

G. Ex. 21 (PowerPoint). In MSHA’s view, past experience at the Pinnacle, Galatia and

VP-5 Mines established that it was prudent to wait an extended period of time – far

exceeding 10 days after the mine was sealed – before reopening and re-ventilating. Tr.

154; G. Exh. 19. 

The Installation of Permanent 50-PSI Seals 

The 9F panel remained under temporary seal with injection of inert gases until 

Modification 21 to the Section 103(k) order, approved by MSHA on July 7, which

allowed 50-psi seals in lieu of temporary seals to be installed at the mouths of the gate

entries across the longwall panel. Tr. 147-48; G. Ex. 17.6

 Installation of the 50-psi seals

33 FMSHRC Page 2217
7

 Pinnacle does not have a second longwall operation, which could have resumed

production at this time. Tr. 148-49. 

permitted mining and production activities to resume outside of the sealed longwall area,

including maintenance throughout the mine and coal production and development on the

multiple continuous miner sections.7

 Meanwhile injection of inert gases to the longwall

area was continued. Tr. 148. 

In its post-hearing brief, the Secretary asserts that MSHA expected that the CO

levels would continue to decline after installation of the 50-psi seals, just as had occurred

after installation of the temporary seals on June 11. G. Exs.11 and 12. Once the CO

levels stabilized, the longwall area would remain sealed until the trends in the sampling

indicated that unsealing was safe. Sec. Br. at 9. 

Pinnacle’s General Manager Nelson testified that the downside to keeping the 9F

panel sealed for an extended period is “the additional financial difficulty imposed upon

the company.” Tr. 268. He testified that resuming coal production from the continuous

miner sections would not be “profitable.” Id. He further testified that he did not believe

an explosion was possible upon re-ventilation with the monitoring and other protections

in place. Tr. 262-63. 

The intervenor, UMWA, whose miners are temporarily out of work due to the

partial shutdown, supports MSHA’s position in this case. Tr. 15; July 28 Letter of J.

Rivlin on behalf of UMWA. 

Given the extensive resources that MSHA and Pinnacle have devoted to and

continue to devote to this matter, it is in all parties’ interest for MSHA to lift the Section

103(k) order and return the longwall to normal production as soon as it is safe to do so. 

III. Legal Analysis and Conclusions of Law

A. Was the Section 103(k) Order Properly Issued Because an

“Accident” Occurred? 

1. Position of the Parties 

a. The Contestant’s Position 

The term “accident” as set forth in Section 3(k) of the Act “includes a mine explosion,

mine ignition, mine fire, or mine inundation, or injury to, or death of, any person.” 30 U.S.C. §

802(k). Contestant argues that no “accident” occurred which could properly form the basis of a

Section 10(k) Order, which expressly requires an “accident.” Contestant relies on Aluminum

Company of America (Alcoa), 15 FMSHRC 1821, 1824 (Sept. 1993), where the Commission

affirmed Judge Mauer’s ruling vacating a 103(k) order “because . . . the Secretary did not prove

that an accident had occurred.” 

Contestant notes that in Alcoa, the Commission determined that the definition of accident

in Section 3(k) was not exhaustive, because the word “includes” is a term of enlargement. 

Contestant argues, however, that the Commission’s interpretation is not necessarily the

appropriate one, and a restrictive interpretation of “includes” is more appropriate given the

33 FMSHRC Page 2218
authority that Section 103(k) confers on the Secretary, citing Pennsylvania State Board of

Pharmacy v. Cohen, 292 A.2d 277, 280 (Pa. 1972). Contestant further highlights the

Secretary’s argument in Alcoa that “an event not specifically listed . . . falls within the definition

of ‘accident’ if it is similar in nature or presents a similar potential for injury or death as a mine

explosion, ignition, fire or inundation.” 15 FMSHRC at 1825-26. Contestant argues that

although the Commission agreed with this argument in general, the Commission concluded that

whether a specific event is similar in nature must be determined on a case-by-case basis. Id. at

1826. Contestant further observes that in dicta, the Commission characterized “accidents” as

“sudden events that pose an immediate hazard to miners and require emergency action,” and that

the regulatory definition of “accident” implementing the accident reporting provisions found at

30 C.F.R. § 50.2(h) was consistent with this understanding. See, e.g., Homestake Mining Co., 4

FMSHRC 1829, 1839 (Oct. 1982) (ALJ Vail) (definition of “accident” appearing in 30 C.F.R. §

50.2(h) applied to uphold the validity of a 103(k) order); Emerald Coal Resources, LP, 30

FMSHRC 122, 124 (Jan. 2008) (ALJ Zielinski) (concluding that an unplanned roof fall was an

accident under the Act). 

Contestant emphasizes that the 103(k) order in Alcoa was premised on a determination

that a mercury contamination had occurred. While the Commission agreed with the Secretary

that an injury or death occurring as a consequence of mercury exposure would constitute an

“accident,” Contestant notes that the Commission found no evidence of overexposure to, contact

with, or injury or illness arising from the presence of mercury. See 15 FMSHRC at 1825. 

Although not specifically referenced by Contestant, the Commission found that “[t]he Secretary

presented no evidence . . . that the mercury contamination . . . was similar in nature or presented

a potential for injury similar to that of a mine explosion, ignition, fire or inundation,” i.e.,

“sudden events that pose an immediate hazard to miners and require emergency action.” Id. at

1826. Furthermore, the Commission emphasized in Alcoa that “the Secretary’s witnesses did not

attempt to relate the hazards associated with the conditions in the area to an event similar to a

mine explosion, fire or inundation . . . . and while an accident need not necessarily involve a

sudden occurrence that creates an immediate hazard, the evidence in this case fails to support the

Secretary’s argument that this particular gradual release of a toxic chemical was similar in nature

or presented the same potential for injury as the events set forth in the statutory definition of

accident.” Id. at 1827. 

Contestant argues that analogous reasoning applies here. MSHA suspects, but cannot

demonstrate, that there is a heating or combustion in the gob or that an event identified in

Section 103(k) has occurred, Contestant contends. Contestant argues that the levels of CO

present do not fit within the definition of “accident.” They were not a sudden event, and the

Secretary can only argue that they “might” represent a fire. Based on Derick’s expert opinion,

following his examination of the data from the sampling and inertion period, Contestant argues

that there is no definitive evidence to establish a fire or heating. Tr. 345 Contestant argues that

the levels of CO are low and do not constitute an event “similar” to those listed in section 3(k)

because there can be other causes for the CO. See Tr. 101, 333. Moreover, Contestant notes that

when the initial CO levels were detected, no other fire gases such as ethylene and acetylene were

detected, (see Tr. 235-36; G. Ex.5 and 9), and there was no heat, smoke or haze detected. See

Tr. 227-28, 230, 232-33. In addition, the coal at Pinnacle is not prone to spontaneous

combustion (see Tr. 302-03). Therefore, an event that would result in an ignition of coal or

33 FMSHRC Page 2219
8

 Derick testified that G. Ex. 13 was missing a graph showing any correlation between

hydrogen and methane. On request of the undersigned (Tr. 226), Contestant attached to its posthearing brief a graph showing the relationship between hydrogen and methane. I receive this

graph into evidence, and remark it as C. Ex. 3, instead of R. Ex. 3. 

methane was necessary, such as the lightning strike that led to the series of explosions at

Pinnacle in 2003 (see Tr. 258; R. Ex. 2, p. 10), but such an event is absent here. See Tr. 308. 

Contestant relies on Derick’s testimony that CO can be produced by normal oxidation of

wood or coal without a detectable rise in temperature, and faults Urosek for unfamiliarity with

the relationship between oxidation and temperature. Tr. 310. In addition, Contestant notes that

hydrogen was also present in the gob (G. Exs. 5 and 9), which Urosek conceded was a product of

natural processes, not combustion. Tr. 187-88. Contestant argues that since the CO and

hydrogen track each other in the same relationship (Tr. 324-25; G. Ex. 13), and the hydrogen is a

product of normal processes in the upper gob, then the CO is also a product of natural processes. 

This is confirmed by the fact that the relationship between CO and hydrogen remained the same

after the inertion process, Contestant argues. Tr. 324-25; G. Ex. 3; R. Ex. 4.8

 Contestant also

relies on Derick’s testimony that if there was a heating, CO would have been expected to rise

noticeably once ventilation stopped, and that did not occur. Tr. 318.

Contestant concludes that irrespective of what MSHA determined at the time of issuance

of the 103(k) order, the Order should now be vacated because after extensive sampling,

Contestant and its expert have determined that the CO was most likely the result of normal

processes within the longwall gob that resulted in the presence of gases in the upper levels of the

gob. See Tr. 311-12. Contestant further argues, based on Derick’s testimony, that there is a

direct conduit from the upper gob to crosscuts 61 and 62, which confirms that normal gases show

up there from the upper gob, not from a heating in the gob. See Tr. 317-18. In sum, Contestant

concludes that there was no predicate “accident” and the 103(k) Order should be vacated.

b. The Secretary’s Position 

The Secretary argues that “[t]he smoldering fire occurring in the 9F longwall gob

at Pinnacle Mine is an ‘accident’ within the Mine Act’s meaning of the term, and

therefore MSHA could issue a Section 103(k) order to manage recovery activities until

mining operations return to normal.” The Secretary states that an “accident” is any event

causing death or injury, or any event that is “similar in nature or presents a similar

potential for injury or death as” a mine explosion, mine ignition, mine fire, or mine

inundation, citing Aluminum Company of America, 15 FMSHRC 1821, 1825-26 (Sept.

1993). Given the central role that 103(k) control orders play in MSHA’s statutory

mission of advancing miner safety, Clinchfield Coal Co., 8 FMSHRC 1310, 1311 n. 2

(Sept. 1986), the Secretary argues that the term “accident” must be broadly construed to

effectuate the Act’s “primary purpose” of protecting miners. See Sec’y of Labor o/b/o

Bushnell v. Cannelton Industries, Inc., 867 F.2d 1432, 1437 (D.C. Cir. 1989); 30 U.S.C.§

801(a); Donovan o/b/o Anderson v. Stafford Contruction Co., 732 F.2d 954, 961 (D.C.

Cir. 1984) (Mine Act must be broadly interpreted to further the congressional aim of

making mines safe places to work.); Sec’y of Labor v. FMSHRC (Jim Walter Resources),

33 FMSHRC Page 2220
111 F.3d 913, 920 (D.C. Cir. 1997); Walker Stone Co., Inc. v. Sec’y of Labor, 156 F.3d

1076, 1082 (10th Cir. 1998). 

Furthermore, to the extent that the statute is at all ambiguous, the Secretary notes

that the agency’s interpretation of the term “accident” must be accepted as long as it is

reasonable. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 842-43 (1984); Secretary of Labor v. Excel Mining, LLC, 334 F.3d 1, 5 (D.C. Cir.

2003). The Secretary notes that her litigating position before the Commission is as much

an exercise of delegated lawmaking powers as her promulgation of a health and safety

standard, and deserves deference. Excel Mining, 334 F.3d at 5. The Secretary concludes

that the “smoldering gob” at Pinnacle meets the statutory definition of “accident” for the

simple reason that it is a “mine fire.” According to Urosek, the term “mine fire” typically

encompasses a gob heating of the type occurring at Pinnacle. Tr. 73. In addition, the

Secretary cites the treatise “Mine Fires,” credited by both expert witnesses, which treats

smoldering coal behind a seal as a “mine fire,” and makes no distinction between

combusting coal that is in flames and combusting coal that is smoldering. G. Ex. 20 at

126 (no attempt should be made to unseal a mine fire until the oxygen is low enough to

make explosions impossible, and the carbon monoxide has disappeared). The Secretary

also cites American Geological Institute, Dictionary of Mining, Mineral, and Related

Terms 208 (2d ed. 1997)( defining “fire” as a “fuel in a state of combustion”).

Even assuming arguendo that the smoldering gob at Pinnacle is not a “mine fire,”

the Secretary argues that it still meets the statutory meaning of the term “accident”

because it is “similar in nature or presents a similar potential for injury or death as” a

mine explosion, mine ignition, or mine fire. Alcoa, 15 FMSHRC at 1825-26. The

Secretary emphasizes that the Pinnacle Mine liberates a high quantity of methane every

day, and methane in the explosive range of 5 to 15% was repeatedly detected in the

immediate vicinity of the gob heating. G. Exs. 5 and 8; Tr. 61. Additionally, in Urosek’s

opinion, the gob heating at Pinnacle was sufficient to ignite methane and create an

explosion. Tr. 74-75. 

The Secretary emphasizes that the history of coal mining is replete with examples

of mine explosions generated by gob heatings, including the VP-5, Galatia, and Pinnacle

explosions discussed in the record. Tr. 125-126; G. Ex. 21. The Secretary argues that

whether a gob heating is considered to be a mine fire or some sort of an incipient fire

event, it poses a similar potential for injury or death as the mine explosions and methane

ignitions that it can generate. In short, the Secretary argues that smoldering coal in a

gassy underground mine poses obvious and serious hazards to miners, and the Mine Act

should not be interpreted so narrowly as to prevent MSHA from issuing a Section 103(k)

order to address this dangerous situation. 

2. Analysis - The Section 103(k) Order was Properly Issued Because the Secretary

Proved by a Preponderance of Evidence that an “Accident” Occurred 

In Alcoa, the Commission concluded that whether a specific event is similar in nature and

severity to a mine explosion, ignition, fire, or inundation must be determined on a case-by-case

33 FMSHRC Page 2221
9

 As the Commission noted in Alcoa, “inundation” as used in section 3(k) of the Mine

Act, may include the inrush of any gas. 15 FMSHRC at 1825, n. 8, citing 30 C.F.R. § 50.2(h)(4). 

10 Urosek testified that the term “mine fire” typically encompasses a gob heating. Tr. 73. 

basis. 15 FMSHRC at 1826. The Commission rejected the Secretary’s argument that an

unplanned and uncontrolled release of mercury, including a gradual release that creates a longterm hazard, is an “accident” under the Mine Act, because the evidentiary record developed was

insufficient to establish that the hazards associated with the conditions in the alumina hydrate

production facility were similar in nature or presented the same potential for injury as a mine

explosion, ignition, fire or inundation. 15 FMSHRC at 1827-28. 

That is not the case here. The Secretary’s expert (Urosek) specifically related the hazards

associated with the elevated CO buildup -- an event similar to, but not as extensive as, an

inundation of gas9

 -- to a smoldering gob fire (an accident)10 and a potential methane ignition or

explosion (another accident). 

It cannot be gainsaid that successful analysis of a potential gob fire requires advanced

knowledge of the causes, characteristics, and management of mine fires. In this regard, I give

Urosek’s expert opinion greater weight than Derick’s based on his more extensive, specialized

experience with mine fires, ventilation issues, explosions and related mine emergencies. Based

on Urosek’s superior credentials and empirical research through direct observation and

experience, I find that his expert opinion that there is a smoldering gob fire has a more reliable

scientific basis than Derick’s expert opinion to the contrary. Thus, where Derick’s expert

opinion conflicts with Urosek’s expert opinion, I give more weight to Urosek’s opinion based on

his superior qualifications and experience. See Asarco Mining Company, 15 FMSHRC 1303,

1307 (July 1993). 

Pinnacle’s June 21 plan submission, endorsed by Derick, predicted that “[a] lengthy

continuation of applying inert gases into the temporary sealed area would most likely result in

continued levels of carbon monoxide and hydrogen.” Tr. 339; Jt. Ex. 1, p. 10, para. (e). Sample

results through July 10, however, belie this prediction, since the levels of oxygen and CO

consistently decreased and began to stabilize. G. Exs. 11 and 12. 

On direct examination, Derick testified that based on sampling correlations between

methane and hydrogen levels and methane and CO levels, and the absence of physical evidence,

he concluded that there was no heating or actual fire occurring at the Pinnacle Mine. Tr. 245. 

On cross examination, however, Derick conceded that he could not positively rule out the

possibility of a gob heating at the Pinnacle Mine. Tr. 340, 344. 

By contrast, Urosek positively ruled out any source for the CO monoxide levels other

than a gob heating. Tr. 91-93, 139-140, 144-45, 168-69, 170-71, 216-17, 169. Moreover,

Urosek testified that Pinnacle’s assertion regarding the absence of higher order fire gases such as

acetylene and ethylene did not support the conclusion that there was no gob fire. He explained

that these gases do not form at the beginning of a fire, and once they do begin to form they do so

at concentrations in the parts per billion, an amount that is not detectable with current

technology. Tr. 119-120. 

33 FMSHRC Page 2222
11 Pinnacle faults MSHA for failing to have used an infrared heat gun or Litton or

hydrocarbon ratios to confirm whether a gob heating was occurring. I credit Urosek, however,

that use of a heat gun would have been ineffective since the longwall gob occupies the former

No. 3 entry and is almost entirely inaccessible. Tr. 73; 355; 362. Except for the small sections

of the gob that had spilled into the twenty-foot wide crosscuts, the gob was could not be reached

and no heat gun readings were attainable. Id. Moreover, even if MSHA could have used a heat

gun in small areas of exposed gob in the crosscuts, those readings may not be reliable since the

record demonstrates that temperature readings from the surface area of a smoldering fire may

differ dramatically from temperature readings in the smoldering area underneath. Tr. 70-71. 

Similarly, Urosek testified that because inert nitrogen and carbon dioxide were artificially

induced into the 9F area, the Litton or hydrocarbon ratios were not reliable. In fact, Derick

agreed with Urosek on this issue when testifying that he did not place much faith in any fire

equations with all the inert gas being applied. Tr. 331. 

More importantly, Urosek considered and rejected Pinnacle’s various explanations for

the elevated CO readings around crosscut 61 of the 9F longwall panel. He rejected the notion

that such levels were ambient to that particular location, but nowhere else in the mine. During

his extensive experiences with mine fires and ventilation issues, Urosek had never heard of

elevated CO levels naturally occurring in a particular area of a mine, except when associated

with a heating. Tr. 145. Nor was he aware of any situation in which differences in the

composition of coal at one particular area of a mine created variations of ambient CO levels. Tr.

170-171. He also rejected Pinnacle’s suggestion that oxidation of old wooden cribs could have

caused the elevated CO levels because in his experience, wood oxidation from old cribbing

results in a minimal rise in CO levels, up to 1 to 2 ppm, far less than the CO levels found in the

9F longwall area. Tr. 207-08; 211-12. Urosek also rejected Pinnacle’s suggestion that the CO

was coming from a natural source based on a supposed correlation between CO and methane

levels. Contrary to Derick’s assertion that methane and CO correlate to one another, G. Exh. 13

shows that the level of CO to methane fell sharply after the area was sealed on June 11. See G.

Ex. 13, depicting the ratios of CO divided by methane and CO divided by hydrogen. As Urosek

put it, “the methane and carbon monoxide don’t have that same track. So it can’t be coming

from the same location or it would track the same. So we don’t agree with D,” i.e., Jt. Ex. 1, p.

10, para. (d) of Pinnacle’s June 21 plan submission. Tr. 129. 

Based on Urosek’s credible testimony grounded in past experience with gob fires, I find

that the Secretary proved by a preponderance of the evidence that its was more likely than not

that the May 19 event, i.e., detection of 22 ppm CO measured between the No. 2 and No. 3

entries in the 9E entries of the longwall gob area, was the result of a smoldering gob fire in an

inaccessible area of the collapsed gob. As Urosek explained, this type of fire in a longwall gob

poses a difficult dilemma for MSHA: How do you extinguish or fight a fire that you cannot see? 

Tr. 73-74.11 

Although the record reflects that CO may rise above ambient levels for a variety of

reasons besides a gob heating, including use of diesel equipment, heat-generating friction along a

belt line, oxidation of carbonaceous materials like wood, or the combustion of coal during a mine

fire (Tr. 145-46, 205, 310-11), Urosek persuasively rejected these alternative explanations as

proffered by Contestant, as set forth above. Rather, in Urosek’s expert opinion, the elevated CO,

33 FMSHRC Page 2223
12 Urosek recalled a recent experience he had as part of MSHA’s rescue and recovery

team when they re-entered a mine two months after an explosion and encountered multiple fires

that had burned out. Although Urosek’s handheld detector did not pick up any signs of the fire,

after encountering an unusual smell in a crosscut, his team uncovered a smoldering fire much

like that seen in a charcoal grill. At the surface of the smoldering pile, Urosek obtained a

temperature reading of less than one hundred degrees with less than 10 ppm CO. When the

heating was disturbed, however, the area began to smoke and temperatures reached over one

thousand degrees with CO levels over 30 ppm. Tr. 70-71. 

which initially caused the operator to withdraw miners from the longwall and then shut down the

entire mine, could only be due to a fire or gob heating (Tr. 91-93, 139-140, 144-46; 168-69, 216-

17). Urosek’s expert opinion was based on extensive experience with past gob fires at other

mines, including the Pinnacle Mine, and hundreds of bag samples that consistently indicated

elevated carbon monoxide localized around the suspected area of gob heating, while other areas

of the 9F longwall panel showed no detectable amounts of carbon monoxide. G. Ex. 9; Tr. 91-

93; 139-140; 216-17. Urosek testified that the suspected gob fire could have begun as either a

small flame or an area of “very, very hot” smoldering coal. Tr. 67-68. 12 

Furthermore, unlike the Secretary’s witnesses and evidence in Alcoa, Urosek specifically

related the hazards associated with 22 ppm CO, an event similar to an inundation of gas, to a

smoldering gob fire and a potential methane ignition or explosion in this gassy mine. Urosek

testified that a smoldering gob fire poses a risk of a methane explosion, since a heating that

produces CO can ignite methane. Tr. 74. Furthermore, Urosek testified that methane in the

explosive range of 5 to 15% existed somewhere in the 9F longwall gob since the gob is located

between the degasification well, where samples showed 50 percent methane, and the 9E entries,

which range from 0 to 2 percent methane under normal conditions. Tr. 75, 360. The following

testimony is instructive on this point:

Q. Does the gob heating at Pinnacle pose any risk of injury to miners?

A. Yes, it does. Because, just as an example, I stated at a similar mine, the heating -- any

heating that's producing carbon monoxide can be of a temperature such that it can ignite

methane. And as we discussed earlier, for example, in the number 2 entry, located

between crosscuts 56 back to 65, the oxygen levels there are greater than 20. The

methane levelsin that particular entry are probably less than 2 percent. However, at the

degasification borehole, which is only a few feet, relatively speaking, into the gob, we

have methane concentrations as high as 50 percent. 

Somewhere in between where that degasification hole would locate and the gob

area, and where we have the fresh air, is an explosive mixture. The concern is that's the

same area where this heating could be located.

Q. What would the risk to miners be? I understand what you're saying about the potential

for an explosion. What would the risk of entry to miners be?

33 FMSHRC Page 2224
A. Well, that the heating would be hot enough that the methane levels could come in

contact with the heated coals or the flame from a gas, possible gas burning, that could

ignite that and propagate into a much larger explosion.

Furthermore, on rebuttal, Urosek testified as follows: 

Q. Final question. Mr. Nelson testified --well, he was asked the question of whether or

not -- if MSHA's theory that a -- or conclusion that a heating is occurring is correct,

whether or not it risked entry to miners. Let me ask you this. Where would you expect

explosive mixtures of methane to be on the F9 panel? 

A. On the F9 panel, again, as we discussed, the ventilation occurs across the longwall

face, coming from the headgate entries to the tailgate entries. And it goes along the

tailgate entries to the back bleeder entries. In those entries that are open we know we

have oxygen levels of 20 percent and methane levels less than 2 percent. In the gob itself

we know from the degas where we're taking samples, we have levels in excess of 40

percent, as we just discussed. So in between there's a fringe. And the only open area, the

major open area or airflow path in between is very close to the number 3 entry. That's

also very close to the area where we're concerned that there is a heating. So the area of

the explosive mixture is in the same proximity of the area where we're concerned there's

a heating. 

Q. All right. And just to be clear, if the explosive mixture of methane comes into contact

with the area of heating, what would the result be?

A. There would be an explosion.

Based on this testimony, I find that the explosion hazard is real and not speculative, as

samples repeatedly indicated explosive levels of methane in the area of suspected heating. G.

Exs. 5 and 8. In sum, I conclude that the Secretary proved by a preponderance of the evidence

that it was more likely than not that the May 19 event, i.e., detection of 22 ppm CO measured

between the No. 2 and No. 3 entries in the 9E entries of the longwall gob area, was the result of a

smoldering gob fire in an inaccessible area of the collapsed gob. I further find, unlike the

evidentiary record in Alcoa, that the Secretary’s expert specifically related the hazards associated

with the elevated CO buildup, an event similar to an inundation of gas, to a smoldering gob fire

and a potential methane ignition or explosion. In these circumstances, I find that the Secretary

has demonstrated by a preponderance of the evidence that an accident has occurred and that the

Section 103(k) Order was appropriate. 

B. Was MSHA’s refusal to modify the 103(k) order to permit re-entry of the

mine and re-ventilation of the longwall unreasonable or arbitrary and

capricious? 

1. Position of the Parties 

a. The Contestant’s Position 

33 FMSHRC Page 2225
13 Contestant argues, however, that the Commission’s approach to evaluating operatorsubmitted plans, including potential plans under Section 103(k), is incorrect and should be

reviewed for reasonableness of the plan and not the reasonableness of MSHA’s rejection, citing

Ziegler Coal Co. v. Kleppe, 536 F.2d 398, 407-07 (D.C. Cir. 1976).

The Contestant argues that the Secretary abused her discretion by denying its plan to reventilate the longwall. The Contestant apparently concedes that under Commission precedent

the propriety of the continuance of a 103(k) order is reviewed under an abuse of discretion

standard. See, e.g., Emerald Coal Resources, 30 FMSHRC 122, n.1 (Jan. 2008) (ALJ

Zielinski)(order denying operator’s motion for summary judgment challenging 103(k) order

based on argument that unplanned roof fall was not an “accident”), citing Eastern Associated

Coal Corp., 2 FMSHRC 2467; see also, Emerald Coal Resources LP, 29 FMSHRC 956, 966

(Dec. 2007).13 Contestant further notes that the primary determination in adjudicating a 103(k)

order is whether the inspector acted “reasonably” in issuing or modifying the order, or

establishing conditions precedent to termination of the order. See Eastern, 2 FMSHRC at 2472;

see also, Southern Ohio Coal Co., 13 FMSHRC 1783, 1801 (Nov. 1991) (ALJ Koutras )(holding

that the issuance of the 103(k) order was “not an unreasonable or arbitrary abuse of [the

inspector’s] authority or discretion”). 

The Contestant notes that the abuse of discretion standard requires an agency to examine

the relevant data and articulate a satisfactory explanation for its action including a rational

connection between the facts found and the choice made. Put differently, the agency must

cogently explain why it has exercised discretion in a given manner, and that explanation must be

sufficient for a court to conclude that the agency’s action was the product of reasoned decision

making. Burlington Truck Lines, Inc. v. U.S., 371 U.S. 156 (1962) (contradictory positions and

inconsistency by the agency indicate an abuse of discretion); see also Alpharma Inc. v. Leavitt,

460 F.3d 1 (D.C. Cir. 2006). Moreover, the decision must describe the standard under which the

conclusion was reached. See, e.g., American Lung Assoc. v. EPA, 134 F.3d 388, 392 (D.C. Cir.

1998). 

Contestant advances three primary contentions in support of its argument that the

Secretary abused her discretion: 1) the Secretary acted unreasonably when denying re-ventilation

and reopening; 2) the origin of the CO was not a reasonable basis for rejection of Pinnacle’s

plan; and 3) the rejection is unreasonable because the plan was a conservative and cautious

approach. 

Initially, Pinnacle reiterates that there is no combustion occurring on the longwall gob. 

Moreover, even assuming there was doubt when the 103(k) Order issued, the data gathered as a

result of comprehensive sampling and inertion efforts since then indicates that no combustion is

occurring. Pinnacle notes that the initial levels of CO were very low and remained low, the

longwall gob has been inert for over a month, and no heat, smoke, or fire gases, such as ethylene

or acetylene, were detected. Tr. 227-28, 230, 232-33, 235-36; Stip. 22; G. Exs. 5 and 9. 

Accordingly, Pinnacle argues that it is appropriate to approve the June 21 plan, as subsequently

modified, to permit re-ventilation of the longwall, evaluation of its conditions, and resumption of

mining, and the Secretary’s continued insistence that the longwall remain sealed is unreasonable

and an abuse of discretion. 

33 FMSHRC Page 2226
Pinnacle emphasizes the limited nature of the multi-step process requested: removal of

the seals and re-ventilation of the longwall; evaluation of the condition on the longwall to

determine if it is safe to operate; and resumption of longwall operations with continued

monitoring of conditions. Further, Pinnacle highlights several alleged fundamental flaws in

MSHA’s rejection of its plan. 

First, although MSHA’s denial is based in part on the uncertain origin of the CO (see Jt.

Ex. 2), Pinnacle argues that the primary flaw in MSHA’s rejection is the lack of combustion and

failure to explain how a heating could have started. Contestant emphasizes that there was no

event in 2011 that would have ignited coal. Tr. 191, 260. Urosek failed to explain how a heating

could have started, in the absence of an event or spontaneous combustion. Contestant notes that

spontaneous combustion was ruled out (Tr. 302-03), and there was no event, like lightning,

cutting or welding that could have triggered a heating. Since the coal at Pinnacle was not prone

to spontaneous combustion (Tr. 302-03), an event must occur that would result in ignition of

coal or methane, but no such event occurred, says Contestant. Tr. 308. Contestant also faults

MSHA’s reliance on the 2003 incident because that event was triggered by a lightning strike, as

demonstrated by pressure changes documented on fan charts. Tr. 189-90, 260; R. Ex. 2. 

Pinnacle argues that the lightning strike triggered an explosion in which methane continued to

burn, much like a pilot light could ignite methane that is brought into an area by ventilation

changes. R. Ex. 2. Pinnacle notes that such scenario was eliminated by Urosek. Tr. 168. 

Second, Pinnacle reiterates its arguments rejected above, that MSHA did not utilize basic

mathematical formulas and technology that would demonstrate that no fire occurred or is

occurring. See Tr. 199-203, 330-31, 332, 354, 361-62. Contestant argues that Urosek did not

use all tools available, including a heat sensing device available to MSHA to determine the

status of the gob. Tr. 361-62. Although Urosek opined that the infrared heat gun could not be

placed close enough to the gob, Contestant notes that Urosek did know the gun’s range or how

close to the gob a person could travel. Tr. 354, 361-62. In addition, although Urosek did not

utilize standard formulas such as the Litton and hydrocarbon ratios to determine a heating

because inertion was occurring, Contestant faults Urosek for failing to evaluate such formulas

before the inertion process started. Tr. 199-201. Contestant claims that the results of the Litton

formula that were calculated before inertion indicated that no fire was occurring. Tr. 201, 331. 

Similarly, Contestant faults Urosek for failing to apply the hydrocarbon ratio, which Contestant

claims would show that no heat was being produced. Tr. 201, 332. Contestant argues that

Urosek unreasonably ignored these calculation and detection tools, which would eliminate

heating as a cause, and therefore MSHA did not act reasonably in rejecting its plan. While

Contestant acknowledges that the Secretary’s position has a certain superficial plausibility, i.e.,

there is some CO so there must be a heating, it argues that her June 30 rejection letter, when

analyzed point-by-point, fails to show that she acted reasonably by gathering, evaluating and

considering all the evidence in a consistent, logical fashion.

Pinnacle also argues that the Secretary relied on inappropriate comparisons from samples

incorrectly collected to establish an ambient level of CO. Although MSHA found that ambient

levels should be 2 ppm (Jt. Ex. 2), that conclusion is based on an alleged invalid comparison of

sampling from a completed longwall panel, which was mined out for several months and located

in a different portion of the mine where coal composition was different. Tr. 252-53, 272. In 

33 FMSHRC Page 2227
addition, samples from the 9F borehole showed CO concentrations significantly higher (11 ppm)

than in the mined out panel (Tr. 267-68; G. Ex. 9), which allegedly indicates that the 9F panel is

different than the previously mined panel. See Tr. 253. Further, Pinnacles alleges that the

samples used for comparison were not gathered properly because they were taken too far from

the longwell gob to be comparable to those taken at the 9F gob. Tr. 198-99. 

Pinnacle also argues that samples taken at the longwall face are suspect because they

were taken in a well-ventilated area. Tr. 179-81; G. Ex. 6. Similarly, Pinnacle argues that

samples taken on the headgate side of the 9F panel to establish a low ambient are inappropriate

because of higher levels of ventilation in that area. Tr. 255, 322-23. Thus, MSHA compared the

ambient in well-ventilated areas to an area that was not well ventilated, the edge of the longwall

gob (Tr. 206), which Contestant argues is illogical and unreasonable. 

Contestant also faults MSHA’s comparison of CO levels at a natural gas well in unmined

coal near the mine (see Jt. Ex. 2), because MSHA failed to determine the depth and extent of

casing of the gas well, or to establish whether the sample was actually taken from the well itself. 

Tr. 172-73, 256. Contestant argues that there is no basis for comparison because the casing

would prevent liberation of gas from Pinnacle’s seam into the well, yet MSHA relied upon such

sample.

Contestant also faults MSHA’s failure to analyze what gases might be released from coal

seams above the seam being mined. Tr. 178. Pinnacle notes that two other coal seams are

present above the Pocahontas No. 3 seam. Tr. 312-13; Jt. Ex. 1A. Pinnacle argues that the CO,

like naturally released hydrogen was part of the upper gob gases that were transferred to the area

of the 61 and 62 crosscuts because of the open conduit between the 9F borehole and the tailgate

entries. Tr. 329. In addition, Contestant argues that the strong association between the CO,

hydrogen, and methane levels indicate that the CO is a product of natural liberation, not

combustion. Tr. 257-58, 274, 312. Contestant argues that this association suggests that the CO

is liberated at the same time as methane as part of the normal processes in the gob. Tr. 318-19. 

Similarly, Contestant notes that the CO levels correspond with the hydrogen levels, which

Urosek conceded were part of normal processes in the gob. Tr. 319; R. Ex. 3. Contestant

contends that if the CO was from a heating and the hydrogen was not, then the relationship

between the gases should change as the heating was suppressed through introduction of inert

gases, but the relationship did not change. Tr. 324-25, 327-28; R. Ex. 3. Contestant argues that

the ratios are not consistent with a fire, which typically produces more CO than hydrogen, which

is not the case here. Tr. 196-97. In addition, Derick testified that if a heating was expected, then

CO levels would rise when the seals were installed and ventilation to the gob ceased, but CO

levels did not rise. Tr. 318. 

Finally, Contestant argues that MSHA’s rejection is unreasonable because Pinnacle’s

plan was conservative and cautious. Although MSHA stated that the plan did not allow enough

time for stabilization following unsealing and re-ventilation (see Jt. Ex. 2), Pinnacle notes that

the plan allowed a minimum of 24 hours (see Jt. Ex. 1), which typically exceeds the time

necessary for stabilization after a major ventilation change. Tr. 248, 265. Moreover, the plan

specifically provided for monitoring during that period and Pinnacle could not move forward

unless sampling results were acceptable. Tr. 266-67. While MSHA disagreed with plan

33 FMSHRC Page 2228
15 Pinnacle notes that the Secretary disagreed with the order of the removal of the seals

and the entry of miners (see Jt. Ex. 2), but argues that because of the installation of metal

stoppings and 50 psi seals, that process would have to be changed, negating MSHA’s concern.

language that mining could resume once re-ventilation occurred “pending no significant negative

changes” (see Jt. Ex. 2), Pinnacle notes that MSHA would be monitoring the re-ventilation

process, and this plan language should not compel rejection, particularly since a myriad of

mandatory standards contain similarly broad language. Although MSHA’s rejection also noted

that oxygen concentrations were not below 4% at all sampling locations “for any significant

length of time” (see Jt. Ex. 2), by the hearing date, the gob had been “inert,” below 10% oxygen

for 30 days and below 4% oxygen for several weeks. G. Ex. 9. Similarly, although MSHA

asserted that CO concentrations had not “stabilized” (see Jt. Ex. 2), Pinnacle argues that as long

as nitrogen and carbon dioxide continued to be injected and methane continued to be liberated in

the gob (see Tr. 268-69), it could be expected that the concentrations of other gases, including

CO, would continue to change as the oxygen levels changed. Tr. 167, 268-69.15 Accordingly,

Pinnacle claims that MSHA’s position is disingenuous since the gases that prevented stability

were used to inert the heating that MSHA suspected. 

In sum, Contestant argues that MSHA’s rejection was unreasonable because it was not

based on reasonable conclusions and the Secretary did not utilize readily available tools to

analyze the gob as she was required to do. Rather, Contestant claims that the plan, as modified,

should have been approved so the multi-step re-entry process could begin. As Nelson opined

after questioning from the bench, upon re-ventilation with the monitoring protections that

Pinnacle had in place, he was confident that there would be no event that would cause injury or

death to miners even if a heating source was present. Tr. 262-63. Pinnacle notes that approval

of the plan would have permitted Pinnacle to take the first step in a process, with no guarantee

that further steps could be taken. MSHA’s refusal to approve the beginning of a process, which

it could halt at any time, is alleged to be unreasonable. Absent vacation of the 103(k) Order,

Pinnacle requests an Order ruling that MSHA should have approved the plan submitted on

June 21, as modified by subsequent submissions.

b. The Secretary’s Position 

The Secretary argues that MSHA acted reasonably when it denied Pinnacle’s plan to reventilate the 9F panel and allow mining operations to resume when levels of CO were ten times

ambient levels. The Secretary emphasizes that the Mine Act grants her “broad discretion” to

control accident situations through control orders. See Senate Report No. 95-181, at 29 (1977)

reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the

Federal Mine Safety and Health Act of 1977, at 617 (1978) (“The unpredictability of accidents in

mines and uncertainty as to the circumstances surrounding them requires that the Secretary or his

authorized representative be permitted to exercise broad discretion in order to protect the life or

to insure the safety of any person.”). By its plain terms, Section 103(k) gives the Secretary the

power to accept or reject a plan submitted by the operator to resume mining, as the Secretary

“deems appropriate” (see 30 U.S.C. § 813(k)), and the Ninth Circuit has described MSHA’s

authority to manage accidents pursuant to Section 103(k) as one of “plenary power” and

“complete control.” See Miller Mining Co. v. FMSHRC, 713 F.2d 487, 490 (9th Cir. 1983). 

33 FMSHRC Page 2229
Given MSHA’s broad discretion to control inherently unpredictable and uncertain mine

accident situations, the Secretary argues that MSHA’s denial of an operator’s request to modify a

control order must be subject to a highly deferential “arbitrary and capricious” standard of

review. See Emerald Coal, 29 FMSHRC 956, 965-66 (Dec. 2007) (holding that the arbitrary and

capricious standard applies during the less exigent circumstances of a mine plan dispute). The

Secretary notes that the arbitrary and capricious standard “involves a review of the record to

determine whether the Secretary properly exercised her discretion and judgment.” Id. at 966. 

The Secretary cites the Third Circuit’s view that MSHA action will be sustained if MSHA

“considered the relevant factors brought to its attention by interested parties” and “made a

reasoned choice among the various alternatives presented.” National Industrial Sand

Association v. Marshall, 601 F.2d 689, 699-700 (3rd Cir. 1979). 

Under Commission precedent, the Secretary argues that absent bad faith or arbitrary

action, her decision must upheld. Twentymile Coal Co., 30 FMSHRC 736, 748 (Aug. 2008). 

Put differently, the Secretary is not required to demonstrate that an operator’s plan is

unreasonable. Id. at 748. Rather, the appropriate inquiry is whether MSHA acted arbitrarily and

capriciously when exercising its broad discretion to manage an unpredictable and uncertain

accident scenario, not whether Pinnacle’s action plan was “reasonable.” 

Applying these principles to the record evidence, the Secretary argues that MSHA acted

reasonably when denying Pinnacle’s plan to re-ventilate the longwall area. Initially, the

Secretary claims that Pinnacle does not contest the fact that the Secretary acted in good faith

throughout this event. Tr. 40. The Secretary further argues that Pinnacle cannot claim that

MSHA failed to consider the relevant factors that Pinnacle brought to its attention, given the

June 23 meeting in which a full discussion of the proposed plan was conducted. See Jt. Ex. 2. 

When Pinnacle requested a written explanation for rejection, MSHA’s letter set forth sixteen

reasons why it considered the plan inadequate. Jt. Ex. 2. Urosek considered the various

explanations offered by Pinnacle to show how elevated carbon monoxide could occur in the

absence of a fire. Tr. 145, 170-71, 208, 212. Urosek found Pinnacle’s explanations

unpersuasive as all evidence led him to conclude that a gob heating was occurring. Tr. 169.

The Secretary argues that MSHA “made a reasoned choice” in denying Pinnacle’s plan to

re-ventilate the area of the gob heating. The chief point of contention was Pinnacle’s provision

that delayed withdrawal of miners in the unsealed area until carbon monoxide reached 25 ppm. 

The Secretary claims that the ambient level of carbon monoxide was 1-2 ppm, less than onetenth the action level proposed in Pinnacle’s plan. Tr. 215. Furthermore, General Manager

Nelson acknowledged that carbon monoxide readings of 12 to 26 ppm are “not typically

encountered by our examiners.” Tr. 226. 

Even though MSHA was not required to demonstrate that Pinnacle’s plan was

unreasonable, the Secretary argues that Pinnacle’s withdrawal provision was not a reasonable

and safe proposal. Although Nelson explained that 25 ppm was selected after Pinnacle

concluded that no mine fire existed because injections of water and inert gas had not reduced CO

levels, the Secretary calls this determination dubious since there is no evidence that any water

actually reached the suspected gob heating and the injection of inert air took place before

temporary seals were installed when oxygen levels remained above sixteen percent. Tr. 241; G.

33 FMSHRC Page 2230
16 Section 103(f) of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §

801 et seq. (1976) (amended 1977) [“the 1969 Act”], is the statutory predecessor of section

103(k) of the Federal Mine Health and Safety Act of 1977, 30 U.S.C. § 813(k). For all intents

and purposes, the statutory language has remained the same under section 103(k), except for the

addition of language extending coverage to all mines, not just coal mines. 

Ex. 9. The Secretary notes that even Derick conceded that a mine fire may still be occurring. 

Tr. 340, 344. The Secretary also notes that Nelson defended 25 ppm CO as reasonable because

it was only “slightly above” the “normal” levels, which he apparently defines as the highest

levels found since the mine fire started. Tr. 250. The Secretary argues there is nothing

“conservative” about proposing a post-ventilation withdrawal provision that only triggers when

carbon monoxide reaches 25 ppm, particularly when the operator’s own expert cannot rule out

the continuing possibility of a mine fire. 

In sum, the Secretary argues that MSHA acted in good faith and carefully considered Pinnacle’s

request, and its denial of Pinnacle’s plan was reasonable and not arbitrary and capricious.

2. Analysis - MSHA’s refusal to modify the 103(k) order to permit reventilation of the longwall and re-entry of the mine was not arbitrary and

capricious or an abuse of discretion

Section 103(k) provides: 

In the event of any accident occurring in a coal or other mine, an authorized

representative of the Secretary, when present, may issue such orders as he deems

appropriate to insure the safety of any person in the coal or other mine, and the operator

of such mine shall obtain the approval of such representative, in consultation with

appropriate State representatives, when feasible, of any plan to recover any person in

such mine or to recover the coal or other mine or return affected areas of such mine to

normal. 

The initial question presented is the appropriate standard of review of a 103(k) Order. In

Eastern Ass. Coal Co., 2 FMSHRC 2467 (Sept. 1980), the Commission concluded that it had

authority to review the section 103(f) order at issue,16 but declined to determine whether such

order was reviewable under an “arbitrary or capricious,” reasonableness,” or de novo basis. Id.

at 2472, n. 7. While it does not appear that the Commission has resolved this issue definitively,

Commission ALJs have applied an abuse of discretion standard. See Emerald Coal Resources,

30 FMSHRC 122, n.1 (Jan. 2008) (ALJ Zielinski) (“While the Act does not specifically provide

for review of section 103(k) orders, the Commission has jurisdiction to review such orders under

an abuse of discretion standard. Eastern Ass. Coal Co., 2 FMSHRC 2467 (Sept. 1980).”); see

also, Southern Ohio Coal Co., 13 FMSHRC 1783, 1801 (Nov. 1991) (ALJ Koutras )(holding

that the issuance of the 103(k) order was “not an unreasonable or arbitrary abuse of [the

inspector’s] authority or discretion”). 

In the context of plan submissions requiring MSHA approval, i.e., Emergency Response

Plans (ERPs), ventilation control plans, and roof control plans, the Commission has applied an

33 FMSHRC Page 2231
arbitrary and capricious standard of review. Emerald Coal Resources LP, 29 FMSHRC 956,

965-66 (Dec. 2007). Although Pinnacle challenges this precedent and argues that operatorsubmitted plans, including potential plans under Section 103(k), should be reviewed for

reasonableness of the plan and not the reasonableness of MSHA’s rejection, citing Ziegler Coal

Co. v. Kleppe, 536 F.2d 398, 407-07 (D.C. Cir. 1976), I reject this argument. After an accident,

which I have found above, Section 103(k) authorizes MSHA to issue such orders deemed

appropriate to insure the safety of miners, and the operator shall obtain the approval of MSHA

regarding any plan to return affected areas of such mine to normal. MSHA’s approval or

disapproval of the plan is discretionary. Or, as the D.C. Circuit has stated, “the Secretary must

independently exercise [her] judgment with respect to the content of . . . plans in connection with

[her] final approval of the plan.” UMWA v. Dole, 870 F.2d 662, 669 n.10 (D.C. Cir. 1989),

quoting S. Rep. No. 181, 95th Cong., 25 (1977), reprinted in Senate Subcom. on Labor, Com. on

Human Res., 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977,

at 613 (1978). Moreover, as the Commission has noted in the ERP context, “[u]ltimately, the

plan approval process involves an element of judgment on the Secretary’s part.” Emerald Coal

Resources LP, 29 FMSHRC at 965, citing Peabody Coal Co., 18 FMSHRC 686, 692 (May

1996) (“Peabody II”). “[A]bsent bad faith or arbitrary action, the Secretary retains the discretion

to insist upon the inclusion of specific provisions as a condition of the plan’s approval.” Id.,

citing C.W. Mining, 18 FMSHRC at 1746; see also Monterey Coal Co., 5 FMSHRC 1010, 1019

(June 1983) (withdrawal of approval of water impoundment plan was not arbitrary or capricious

where MSHA’s conduct throughout the process was reasonable).

Thus, when MSHA denies approval of a plan submission to modify a 103(k) Order, as

here, the appropriate inquiry is whether that denial was arbitrary and capricious or an abuse of

discretion, not whether the plan submitted was reasonable. This standard appropriately respects

the Secretary’s judgment while allowing review for abuse of discretion, errors of law, and review

of the record under the substantial evidence test. Cf. Emerald Coal Resources LP, 29 FMSHRC

at 966. Moreover, under the Administrative Procedure Act, agency action is set aside when

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.

C. § 706. Accordingly, I apply an arbitrary and capricious or abuse of discretion standard of

review here. 

This standard involves a review of the record to determine whether the Secretary

properly exercised her discretion and judgment in rejecting Pinnacle’s plan to re-ventilate and

open the mine. Emerald Coal Resources LP, 29 FMSHRC at 966. While the scope of review

under the “arbitrary and capricious” standard is narrow, the agency must examine the relevant

data and articulate a satisfactory explanation for its action, including a rational connection

between the facts found and the choices made. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)(citations omitted). Normally, agency action is

considered arbitrary and capricious if the agency has relied on factors which Congress did not

intend that it consider; entirely failed to consider an important aspect of the problem; offered an

explanation for its decision that runs counter to the evidence before it; or has taken a position so

implausible that it cannot be ascribed to a difference in view or the product of agency expertise. 

Id; see also Energy West Mining Co., 18 FMSHRC 565, 569 (Apr. 1996) (“abuse of discretion”

has been found when “there is no evidence to support the decision or if the decision is based on

an improper understanding of the law”) (citations omitted). 

33 FMSHRC Page 2232
17 MSHA noted that samples collected from another longwall panel May 27 indicated

limited CO concentrations (1 ppm); that numerous samples collected from the 9F1 degasification

borehole in another longwall panel from another area of the mine (8Q5) indicated CO

concentrations of 4-5 ppm; that samples collected in crosscuts along the perimeter of the

worked-out area of this longwall panel on the headgate side and in the tailgate side outby 59

crosscut indicated 0 ppm CO; that CO was not detected in the face area when elevated methane

concentrations were detected due to the inundation of floor gas, however, CO was detected in the

tailgate crosscuts inby the face, raising the the concern that the CO was not associated with

higher concentrations of methane; that the mine has a history showing the correlation between

low concentrations of CO and subsequent explosions; that samples collected from another

longwall bleeder system within the mine following re-ventilation of a sealed area after a series of

events, fires and explosions in 2003 indicated limited CO; that prior to sealing of this longwall

panel in 2003, multiple explosions occurred in the mine when low concentrations of CO were

being detected; and that the number and location of all ignition sources in the temporarily sealed

area are unknown, and air sample analysis indicated that portions of the sealed area were

explosive when collected. 

18 Pinnacle challenges Urosek’s testimony discounting the fact that oxidation of wooden

cribs in the area could produce CO because he did not know until the hearing that there were

wooden cribs used as supplemental support (Tr. 166), but I give little weight to this challenge as

Urosek’s testimony was grounded in extensive past experience, as outlined herein. 

This standard has not been met here. As explained below, MSHA did not rely on

extraneous factors or fail to consider important aspects of Contestant’s plan. It offered reasons

for rejection that were supported by the evidence before it, and staked out a position that was

plausible and supported by agency expertise. When Pinnacle requested a written explanation for

rejection, MSHA’s letter set forth extensive reasons why it considered the plan inadequate so

soon after the inertion process. Jt. Ex. 2. MSHA rationally relied on uncertainty as to the origin

of the CO concentrations;17 that oxygen concentrations were not below 4 percent for all sampling

locations for any significant length of time following the installation of the temporary seals; that

CO concentrations had not stabilized for a sufficient time to permit definitive determination; that

the proposed procedure to restart the Asco fan and remove the temporary seals would expose

miners to the hazards associated with moving explosive mixtures over an ignition source; that

Pinnacle’s plan allows insufficient time for the mine to stabilize following a major change to the

ventilation system; that Pinnacle’s plan does not discuss the criteria to evaluate the atmosphere

during the stabilization period before miners re-enter the mine for examination; that the proposed

levels of CO are not acceptable since ambient levels appear to be 2 ppm or less, and the action

level of 25 ppm greatly exceeds the ambient level; that the phrase “[p]ending no significant

negative changes” is too vague to comprehend; and that no additional monitoring of the mine

atmosphere is proposed once the initial evaluation of the longwall area is completed.

According to Contestant, the primary disagreement between Pinnacle and MSHA was

whether combustion was occurring on the longwall gob given MSHA’s alleged inability to

explain how a heating could have started, but this disagreement really mirrors the issue of

whether an accident occurred in the first place, an issue that I have resolved above. Urosek

considered and rejected the various explanations offered by Pinnacle to show how elevated CO

could occur in the absence of a fire. Tr. 145, 170-71, 208, 212.18 Urosek, a mine fire expert with

33 FMSHRC Page 2233
more extensive and relevant experience than Derick, found Pinnacle’s explanations unpersuasive

as all evidence led him to conclude that a gob heating was occurring. Tr. 169. In addition, I

note that upon questioning from the bench, Pinnacle’s own expert acknowledged the potential,

albeit unlikely, scenario that combustion or ignition occurred during torch cutting and welding

on or about April 20 on the headgate side near the longwall entry of the 9E. Tr. 260; cf. Tr. 239,

308. As explained in Section III, A, 2 above, I conclude that the Secretary proved by a

preponderance of the evidence that it was more likely than not that the May 19 event, i.e.,

detection of 22 ppm CO measured between the No. 2 and No. 3 entries in the 9E entries of the

longwall gob area, was the result of a smoldering gob fire, and therefore, an accident occurred

within the meaning of Section 103(k). 

The record clearly establishes that MSHA and its expert considered relevant factors that

Pinnacle brought to its attention during several meetings or telephone conferences in May and

June, including a full discussion on June 23 of the details of Pinnacle’s June 21 reventilation

plan and whether it met MSHA’s specifications. Tr. 116-18. MSHA declined to approve

Pinnacle’s plan at that time primarily because of disagreement over the ambient level of CO and

the provision that delayed withdrawal of miners in the unsealed area until carbon monoxide

levels reached 25 ppm. In addition, MSHA did not agree that the CO was a naturally occurring

condition, and the 8-hour waiting period proposed after re-ventilation fell far short of MSHA’s

typical 72-hour period. Tr. 119. “[I] discern in these events adequate notice and discussion by

MSHA officials. Nothing in the record suggests bad faith by MSHA, and [I] perceive no course

of arbitrary conduct.” See C.W. Mining 18 FMSHRC 1740, 1747 (Oct. 1996)(roof control plan). 

Furthermore, at the hearing, Urosek gave reasoned explanations why MSHA disagreed

with the Pinnacle’s conclusion at page 10 of its plan (Jt. Exh. 1, p. 10) that the CO levels were

naturally occurring from upper seams around the borehole location. Tr. 119-136. Based on all

of his extensive years of experience with MSHA, Urosek credibly testified that the only time he

ever saw elevated, localized levels of CO such as existed at the tailgate side of the 9F longwall

panel in this case, was when it was associated with some type of heating. Tr. 145-46. He

explained MSHA’s view that given the CO levels present and the recent inerting and sealing

process, it was too early on June 23 to safely re-ventilate the mine. Tr. 124-26; see also Jt. Ex. 2. 

He explained why MSHA disagreed with Pinnacle’s plan assertion that gob gas was

homogeneous and stable based on strong correlations between hydrogen, methane and CO. 

Thus, although hydrogen and CO mirrored each other, the methane and CO did not track each

other, as shown by G. Ex. 13. Tr. 126-29, 131. Therefore, MSHA concluded that the CO was

coming from a different location than the methane. Tr. 131. Urosek also refuted Pinnacle’s

prediction that a lengthy continuation of the inertion process into the temporary sealed area

would most likely result in continued levels of carbon monoxide and hydrogen (Tr. 339; Jt. Ex.

1, p. 10, para. (e)), since sample results through July 10, showed that CO consistently declined

and began to stabilize. Tr. 129-31; G. Ex. 12. 

MSHA also rationally rejected the specifics of Pinnacle’s June 21 plan to re-ventilate, reenter and evaluate the longwall area, and resume operations, as set forth in Jt. Ex. 2, p. 11. With

regard to re-ventilation, Urosek and MSHA were of the view that eventually they could have

worked with Pinnacle to achieve a safe way to take the seals down and restart the fan. But

MSHA was concerned in late June about sampling results and the prospect of an explosive

33 FMSHRC Page 2234
mixture of methane during re-ventilation while miners were underground with battery-powered

equipment in the sealed area. Tr. 132-33. With regard to re-entry and evaluation after the

ASCO fan had been restarted for 24 hours, Pinnacle proposed an eight-hour waiting period for

atmospheric stability. In the absence of missing or trapped miners, however, MSHA adhered to

longstanding “standard mine rescue practice” to wait 72 hours after the ventilation change for

atmospheric stability before re-entry. Tr. 133-34. Urosek opined that MSHA and Pinnacle

could have likely worked out these re-entry and evaluation time frames. Tr. 136. 

Turning to the chief point of contention concerning Pinnacle’s re-ventilation plan, the

resumption of operations, the parties were at loggerheads over the ambient level of CO and

Pinnacle’s provision that delayed withdrawal of miners in the unsealed area until CO reached 25

ppm, a level the Secretary considered unreasonable and unsafe. Urosek credibly testified that

CO at 25 ppm indicated that some type of heating was going on of sufficient level and

temperature to ignite methane. Tr. 141. Based on CO samples taken from a natural gas pipeline

at the mine (G. Ex. 14), degasification boreholes in adjacent longwall panels (G. Ex. 15), and

another bleeder system in the mine (G. Ex. 16), MSHA rationally concluded that the ambient

level of CO in the mine was 1 or 2 ppm. Tr. 138-143. This conclusion is also supported by

Urosek’s testimony that ambient levels of 1 to 2 parts per million (“ppm”) was what MSHA

inspectors normally encountered. Tr. 215. Although Pinnacle challenges the use of particular

samples for comparison purposes, MSHA asked Pinnacle to sample anywhere it was safe to

travel and get as close to the gob as possible, in order to validate Pinnacle’s claim that the CO

was naturally occurring at levels above the ambient level as determined by MSHA, but such

sampling failed to support Pinnacle’s contention. Tr. 140, 142; G. Exs. 14-16. In these

circumstances, I find that the sampling was sufficiently widespread and representative enough to

establish an ambient level of CO of 1 or 2 ppm as determined by MSHA. Pinnacle failed to

establish an alternative ambient level that could be considered more accurate. 

It is important to note that in determining whether MSHA’s rejection was arbitrary and

capricious, I examine the circumstances before the MSHA District Manager when he considered

Pinnacle’s plan in late June. Cf. Emerald Coal Resources LP, 29 FMSHRC at 968. As noted,

any Pinnacle plan after this date is not in evidence and not ripe for adjudication before me. See

note 5 supra. A contrary result would allow an operator to continually manipulate the time

frame for adjudication by revising its plan without giving MSHA an opportunity to fully address

the updated revisions. Pinnacle took this risk here by renewing its motion for expedited hearing

while negotiations were still ongoing and any arguable impasse was broken by its subsequent

revisions. 

Based on my review of the record, it is apparent that MSHA’s refusal to approve

Pinnacle’s June 21 plan was not arbitrary, capricious or an abuse of discretion. In Section

103(k), Congress gave the Secretary the power to accept or reject a plan submitted by the

operator to resume mining as the Secretary “deems appropriate.” See e 30 U.S.C. § 813(k). As

the Ninth Circuit has observed, MSHA’s authority to manage accidents pursuant to Section

103(k) is one of “plenary power” and “complete control.” See Miller Mining Co. v. FMSHRC,

713 F.2d 487, 490 (9th Cir. 1983). 

33 FMSHRC Page 2235
I find that MSHA examined the relevant data and articulated a reasoned and satisfactory

explanation for its rejection including a rational connection between the facts found and the

choice made. National Industrial Sand Association v. Marshall, 601 F.2d 689, 699-700 (3rd Cir.

1979). Put differently, MSHA cogently explained why it exercised its discretion to reject

Pinnacle’s June 21 plan and why that rejection was the product of reasoned decision making. 

The record amply demonstrates adequate consideration and discussion by MSHA regarding the

disputed plan provisions, that the negotiations were conducted in good faith, and that MSHA’s

decision to reject the plan on June 23 was supported by facts presented to the MSHA District

Manager. I find nothing arbitrary or capricious in MSHA’s refusal to approve a post-ventilation

withdrawal provision that was triggered only when CO levels reached 25 ppm, particularly when

such levels prompted management to withdraw miners from the longwall area, shut off power to

the section, as required by the MSHA-approved ventilation plan, and subsequently evacuate the

entire mine. Stip. 3; Tr. 226. In fact, Pinnacle’s own general manager acknowledged that CO

readings of 12 to 26 ppm were atypical and raised concern. Tr. 226. In these circumstances,

contrary to Pinnacle’s contention, I find that Pinnacle’s plan was not a conservative and cautious

approach. 

On the other hand, I am cognizant of the financial inconvenience caused by the ongoing

loss of longwall production at the Pinnacle Mine. The longwall shutdown has imposed

prodigious costs on the operator and MSHA, and resulted in considerable loss of income to the

miners. But financial inconvenience caused by the “accident” is an insufficient reason to unseal

the longwall panel before MSHA has greater confidence that the atmosphere has stabilized. 

Even Derick conceded that he could not rule out the continued existence of a mine fire at

Pinnacle. Tr. 340; 344. I agree with the Secretary that the experience of the Galatia and VP

mine fires and the extended idling of Pinnacle in 2003-2004 go a long way toward demonstrating

that it may be safer and more conducive for long-term production, to return the mine to normal

operations through extended sealing rather than premature re-ventilation under the June 23 plan

provisions. 

Moreover, in my view, the Secretary has proposed the better rule-of-thumb based on the

learned treatise Mine Fires. G. Ex. 20. As noted therein, premature unsealing “might be the

slowest, most difficult, most dangerous, and most expensive way” to return a mine to normal

operations. G. Ex. at 128. Past experience at this mine in 2003-2004 appears to substantiate this

proposition. No one can state with certainty the right time to unseal. A variety of factors must

be considered, but the general “rule-of-thumb” is that unsealing should take place at the earliest

one month after the mine atmosphere in the sealed area has stabilized. G. Ex. 20 at 127. 

Pinnacle’s June 21 plan to re-ventilate was submitted just ten days after completion of temporary

seals, at a time when samples showed that the mine atmosphere had not yet stabilized. G. Exs.

11 and 12. As the author of Mine Fires points out, “[a] better rule-of-thumb is to ask, ‘Why

unseal?’ Too often that question was asked too late; and more often the answer was, ‘There was

no good reason.’” G. Ex. 20 at 128. 

In sum, I cannot conclude that the Secretary’s rejection of plan provisions that she

deemed would jeopardize miner safety is indicative of bad faith, arbitrary or capricious conduct,

particularly in light of the overarching purpose of the Mine Act to ensure miner safety and health

and the history of this mine concerning gob fires and methane explosions. See my record

33 FMSHRC Page 2236
reservations at Tr. 258. The parties were unable to bridge their differences within the strictures

of the Secretary’s plenary authority under Section 103(k) as she has reasonably interpreted it. 

The Secretary’s rejection of the Contestant’s plan was neither arbitrary and capricious nor

unreasonable and is hereby AFFIRMED. 

ORDER

Based on the foregoing findings of fact and conclusions, the contested Section 103(k) Order

issued on May 25, 2011 is AFFIRMED. The Notice of Contest filed by the Contestant is

DENIED and DISMISSED.

/s/ Thomas P. McCarthy 

Thomas P. McCarthy

Administrative Law Judge

Distribution: (E-Mail and Certified Mail)

Samuel C. Lord, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,

22nd Floor West, Arlington, VA 22209-2247

R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1340, 401 Liberty

Avenue, Pittsburgh, PA 15222-1000

33 FMSHRC Page 2237
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON, D.C. 20001

September 8, 2011

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS

MINE SAFETY AND HEALTH :

ADMINISTRATION, (MSHA), : Docket No. LAKE 2008-436

Petitioner : A.C. No. 11-03054-148746

 :

 : Docket No. LAKE 2009-057

 : A.C. No.11-03054-163984-01

v. :

 : Docket No. LAKE 2009-058

 : A.C. No.11-03054-163984-02

 :

BIG RIDGE, INC., : Docket No. LAKE 2009-059

Respondent : A.C. No.11-03054-163984-03

 : 

 : Docket No. LAKE 2009-378

 : A.C. No.11-03054-177990-02

 :

 : Mine ID: 11-03054

 :

 : Mine: Willow Lake Portal

DECISION

Appearances: Tyler Mcleod, Esq., and Beau Ellis, Esq., Office of the Solicitor, U.S. Department

of Labor, Denver, Colorado, on behalf of the Secretary of Labor; 

 Arthur M. Wolfson, Esq. and Jason P. Webb, Esq., Jackson Kelly PLLC, 

 Pittsburgh, Pennsylvania, on behalf of Big Ridge, Inc.

Before: Judge Melick

These cases are before me upon petitions for civil penalty filed by the Secretary of Labor

pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et

seq., (“the Act”), charging Big Ridge, Inc., (“Big Ridge”) with multiple violations of mandatory

standards and seeking civil penalties for the alleged violations. The general issue before me is

whether Big Ridge violated the cited standards as alleged and, if so, what is the appropriate civil

penalty for these violations. Additional specific issues are addressed as noted. During hearings, the

parties reached a settlement regarding a number of charging documents and submitted supportive

documentation post hearing. I have reviewed the representations and documentation submitted with

respect to those charging documents and find that the settlement is acceptable within the framework

of section 110(i) of the Act. An order approving that settlement accompanies this decision.

33 FMSHRC Page 2238
1 Section 104(d) of the Act provides as follows:

(1) If, upon any inspection of a coal or other mine, an authorized representative of the

Secretary finds that there has been a violation of any mandatory health or safety

standard, and if he also finds that, while the conditions created by such violation do

not cause imminent danger, such violation is of such nature as could significantly

and substantially contribute to the cause and effect of a coal or other mine safety or

health hazard, and if he finds such violation to be caused by an unwarrantable failure

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

include such finding in any citation given to the operator under this Act. If, during

the same inspection or any subsequent inspection of such mine within 90 days after

the issuance of such citation, an authorized representative of the Secretary finds

another violation of any mandatory health or safety standard and finds such violation

to be also caused by an unwarrantable failure of such operator to so comply, he shall

forthwith issue an order requiring the operator to cause all persons in the area

affected by such violation, except those person referred to in subsection (c) to be

withdrawn from, and to be prohibited from entering, such area until an authorized

representative of the Secretary determines that such violation has been abated.

(2) If a withdrawal order with respect to any area in a coal or other mine has

been issued pursuant to paragraph (1), a withdrawal order shall promptly be

issued by an authorized representative of the Secretary who finds upon any

subsequent inspection the existence in such mine of violations similar to

those that resulted in the issuance of the withdrawal order under paragraph

(1) until such time as an inspection of such mine discloses no similar

violations. Following an inspection of such mine which discloses no similar

violations, the provisions of paragraph (1) shall again be applicable to that

mine. 

Order Number 6673440

As amended, this order, issued pursuant to section 104(d)(2) of the Act, alleges, alternatively,

a violation of the standard at 30 C.F.R. § 75.362(a)(2), 30 C.F. R. § 75.363 (a) and 30 C.F.R. §

75.363(b), and charges as follows:1

An inadequate on-shift examination was conducted on the MMU 002-0 coal

production unit during the 6:30 a.m. - 3:30 p.m. shift of January 24, 2008. The

conditions detailed in Mine Citation/Order No. 6673438 were neither posted nor

recorded in a book maintained for that purpose.

The conditions were extensive, obvious and readily identifiable to the certified

person (foreman) conducting the on-shift examination 

For the reasons that follow, I find that the Secretary has sustained her burden of proving a

violation of the standards at 30 C.F.R. § 363(a) and 363(b). Accordingly, there is no need to consider

herein whether there was also a violation of the standard at 30 C.F.R. 75.362(a).

33 FMSHRC Page 2239
The cited standard at 30 C.F.R. § 363(a) provides as follows:

a) Any hazardous condition found by the mine foreman or equivalent mine official,

assistant mine foreman or equivalent mine official, or other certified persons

designated by the operator for the purposes of conducting examinations under this

subpart D, shall be posted with a conspicuous danger sign where anyone entering the

areas would pass. A hazardous condition shall be corrected immediately or the area

shall remain posted until the hazardous condition is corrected. If the condition

creates an imminent danger, everyone except those persons referred to in section

104(c) of the Act shall be withdrawn from the area affected to a safe area until the

hazardous condition is corrected. Only persons designated by the operator to correct

or evaluate the condition may enter the posted area.

The standard at 30 C.F.R. § 363(b) provides as follows:

(b) A record shall be made of any hazardous condition found. This record shall be

kept in a book maintained for this purpose on the surface at the mine. The record

shall be made by the completion of the shift on which the hazardous condition is

found and shall include the nature and location of the hazardous condition and the

corrective action taken. This record shall not be required for shifts when no

hazardous conditions are found or for hazardous conditions found during the preshift

or weekly examinations inasmuch as these examinations have separate record

keeping requirements.

 Inspector William Keith Roberts of the Department of Labor’s Mine Safety and Health

Administration (“MSHA”) who has more than eleven years experience as an MSHA Inspector and

significant industry experience, issued the subject order on January 25, 2008.Roberts testified that,

at the beginning of the day shift on that date, he observed approximately 19 tons of loose coal and

coal dust in mechanized mining unit number two. According to Roberts, the unit was idle at that

time and the foreman from the prior working shift had left the piles of loose coal behind. Indeed,

Respondent’s Safety Manager, Bart Schiff, admitted at hearings that there were coal accumulations

in the cited area including coal piles next to the continuous miner. He also acknowledged that

although there was a layer of rock dust on top of the coal it was not mixed within the piles and that

an explosion could lift that rock dust and expose the coal and coal dust underneath. Roberts issued

the order at bar for an inadequate on-shift examination by the foreman and for failing to identify,

immediately correct and post and record this material. 

Roberts opined that loose coal and coal dust in a gassy mine is a hazardous condition. The

subject mine is classified as a “gassy” mine liberating more than two million cubic feet of methane

every 24 hours. Roberts testified that amounts far less than what he observed have been shown in

test conditions to further propagate a mine fire or explosion, and that the presence of such coal dust

could turn an ignition into an explosion. He also noted that this material in a working section is of

particular concern since there are trailing cables, cable reel equipment and electrical equipment that

may become damaged and are known fire sources. Miners were also working immediately outby

on a construction project. 

33 FMSHRC Page 2240
Roberts also noted that despite having failed to first remove the 18.99-ton piles of coal from

the floors and ribs, Respondent placed only a “very light layer of rock dust” in the area from a

slinger-type rock dusting machine. According to Roberts, this machine does not rock dust the floor,

but rather the rock dust that ended up on the floor and the accumulation piles was simply residue that

had not attached to the ribs or roof. According to Roberts, the rock dust layer was thinner than a

sheet of paper thus rendering it insignificant.

Roberts further opined that underneath the thin layer of rock dust were deep piles of pure

coal and coal dust. He noted that the concussive forces from an explosion would suspend

approximately one inch of the material into the air thereby exposing the pure combustible material

in the accumulations. The cited loose coal and coal dust therefore constituted a condition that would

create or increase the possibility of loss in the event of an ignition or fire.

Roberts noted that foreman Les Hawkins was obligated to perform the subject on-shift

examination on the January 24 day shift and that Hawkins was also required under section 363(a)

to post the hazardous conditions with a conspicuous danger sign and immediately correct the

conditions or keep the area posted until the conditions were corrected. He was also required under

section 363(b) to record the conditions and the corrective action in the on-shift examination reports.

 The Secretary maintains that Hawkins failed to comply with both of these requirements.

The subject unit was considered a “spare” unit since a scheduled crew was not assigned, but

rather miners elected to work this area on their days off. It is undisputed that this unit last produced

coal during the day shift (i.e., 6:30 a.m. to 3:30 p.m.) on January 24 when Hawkins was the foreman.

In Respondent’s pre-shift and on-shift reports, the mine examiners had repeatedly noted, “unit needs

more cleaning”. The examiners placed these comments under “remarks”on January 24- 3 a.m. to

7 a.m, and 7 p.m to 11 p.m, . Hawkins therefore was on notice that cleanup efforts were needed

before he worked the unit on the January 24 day shift, but failed to clean the unit, report the

condition, or post the area as a hazard pending corrective action.

The on-shift report for the subject shift shows that the section was in fact in production on

the day shift January 24, and that Hawkins was present, Hawkins failed to record information

concerning the purported loose coal piled around the unit, or why he failed to clean the unit as noted

by the pre-shift examiners. Hawkins also failed to post the area. Considering the credible testimony

of Inspector Roberts, significantly corroborated by Mr. Schiff, I find that a reportable hazard in fact

existed and that Hawkins therefore violated the requirements of sections 75.363(a) and 75.363(b).

Even applying a “reasonably prudent” person test it is clear that the significant size and amount of

combustible accumulations herein constituted a “hazardous condition” within the meaning of the

cited standard. See Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). I note, however that

the violation was not deemed to have been “significant and substantial” and it is therefore of lesser

gravity.

The Secretary also maintains that the violation was the result of Respondent’s unwarrantable

failure. Unwarrantable failure is “aggravated conduct, constituting more than ordinary negligence,

by a mine operator in relation to a violation of the Act.” Emery Mining Corp., 9 FMSHRC 1997,

2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as “reckless disregard,”

“intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04;

Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (Feb. 1991); see also Rock of Ages

Corp. v. Secretary of Labor, 170 F.3d 148, 157 (2d Cir. 1999); Buck Creek Coal, Inc. v. MSHA, 52

33 FMSHRC Page 2241
F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure test). Moreover, the

Commission has examined the conduct of supervisory personnel in determining unwarrantable

failure and recognized that a heightened standard of care is required of such individuals. See

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (Dec. 1987) (section foreman held to

demanding standard of care in safety matters); S&H Mining, Inc., 17 FMSHRC 1918, 1923 (Nov.

1995) (heightened standard of care required of section foreman and mine superintendent).

When determining whether conduct is “aggravated” all the facts and circumstances must be

considered to see if any aggravating factors are present. These factors include, “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.” Consolidation Coal Co., 22 FMSHRC 340,

(Mar. 2000). 

The pre-shift examiners reported that the unit needed cleaning since at least the midnight

shift before Hawkins worked on the unit. Roberts testified that the mine produced the 18.99 tons of

loose coal and coal dust during more than one mining cycle. He explained that accumulations in a

normal mining cycle would be produced in a single location to be cleaned. This situation, however,

involved extremely large accumulations in multiple areas. Thus, it is clear that Respondent

permitted the conditions to exist for an extended period of time. Roberts further emphasized that this

was not a remote location, but rather at the last open crosscut across all the headings. The conditions

were therefore extensive and obvious and Hawkins was working in the area the entire shift in

question, yet failed to address the serious problem in any manner.

In addition, Safety Manager Schiff acknowledged that Hawkins was required to do an onshift examination. After Roberts told Schiff there would be an enforcement action for the

accumulations and potentially for the examination, mine manager Terry Ward arrived on the unit.

Ward told Roberts that the unit had in fact produced coal on the previous day shift and that he and

Hawkins specifically discussed at that time the need to clean the unit. When Roberts asked Ward

why nothing had been done, Ward stated that it was not entirely Hawkins’ fault since Hawkins’s

requested a coal scoop but Ward had removed if from that area to be used on a nearby construction

project.

I do not find Ward’s excuse that he was using the coal scoop for other purposes was a

mitigating factor. Indeed, Roberts’ discussion with Ward established that both the foreman and the

mine manager knew that there were significant loose coal and coal dust accumulations throughout

the unit on January 24, if not before and that the foreman had requested a scoop to clean the unit,

but the mine manager would not provide the scoop and that the foreman did not implement any other

means to remove the coal from the unit. These factors are indicative of an unwarrantable failure to

comply.

I also find that Respondent had been placed on ample notice that it had an ongoing problem

with accumulations. At the time of his inspection, Roberts viewed the violation history for the

previous 24-month period and noted that the mine had previously been cited for 164 violations of

the cited standard during that time. He testified credibly that these violations were discussed with

the Respondent in pre- and post-inspection conferences, in addition to informal meetings during the

33 FMSHRC Page 2242
course of the inspection period. Respondent was thereby placed on notice that additional

compliance efforts were necessary. See Enlow Fork Mining Co., 19 FMSHRC 5, 11-12 (Jan 1997).

Within the above framework of evidence, is clear that the violation cited in Order No.

6673443 is proven as charged, and that it was the result of Respondent’s unwarrantable failure.

Order Number 6673462

This order, also issued pursuant to section 104(d)(2) of the Act, alleges a “significant and

substantial” violation of the mine operator’s roof control plan under the standard at 30 C.F.R. §

75.220(a)(1) and charges as follows:

The mining of perimeter cut #25 in the previously mined room developed off Entry

8@ 42+50', MMU 014-0, was not compliant with the approved roof control plan.

The perimeter cut was mined in a manner that not only holed the cut through into the

preceding perimeter cut but also eliminated the required 5' wide coal fender between

the perimeter cuts.

This pillar recovery effort resulted in only a small “stump” of coal between the

perimeter cuts and the rib line of the room. This small fender has subsequently

crushed out due to its reduced width and the weight of the roof strata. The mining

method at the cited location presented a distinct roof fall hazard to the continuous

mining machine operator.

The relevant pages of the mine operator’s approved roof control plan are set forth in

Appendix A, attached hereto and exhibit G-8.

The roof control plan (“Plan”) stated in relevant part as follows with respect to engaging in

perimeter mining: 

1. This plan can be seen on sketches on pages 20-24 [Appendix A pp.

5-9].

*** *

5. If a perimeter cut inadvertently holes into the preceding cut, the

miner machine will immediately stop and pull out of this cut and

proceed to the next cut (Ex. G-8 p.24 and

Appendix A p.4).

The Plan included a sketch that illustrates the manner in which the continuous mining

machine is to make the perimeter cut, as well as the requirement that the remaining coal fender must

be equal to or greater than five feet in width (Ex. G-8 pps. 22 and 27 and Appendix A pps.2 and 7).

The coal fender is the remnant of coal left between two perimeter cuts to help support the roof,

which is illustrated as the triangle shape on the Plan ( Appendix A p. 7).

33 FMSHRC Page 2243
Inspector Roberts testified that this sketch depicted a cut similar to the one at issue. He

further testified that a five-foot coal fender is the minimum amount of coal necessary to adequately

support the immediate and main roof. The Plan also included a sketch illustrating a perimeter cut

where the remaining coal fender is configured differently in light of the angled headings. In this

illustration, the fender was required to be equal to or greater than five feet at the back end of the

fender or six feet at the front end. (Ex. G-8 p. 29 and Appendix A p. 9). 

Roberts explained that while he was performing a five-day spot inspection in unit four, he

noticed a large number of timbers and cribs at the mouth where there typically should only be three

timbers. This area was immediately adjacent to a frequently traveled shuttle car road. Roberts

observed the missing coal fender and walked around the area to view the condition. Roberts testified

that based on his observation, it was “obvious” that the miner operator had not only holed through

the fender but continued to mine out the remaining portion of the fender toward the rib, leaving only

a small triangular coal stump behind the miner at the front end of the fender. He concluded that this

small stump then crushed out from the weight of the roof leaving no roof support. Roberts explained

that, under the Plan, in the event the miner holes through the fender, the miner operator is required

to immediately cease mining and withdraw the machine from that cut and start a new perimeter cut

if there is one to be made. Roberts opined, however, that since there were no other cuts to be made

in this instance, the operator would have had to back the equipment into the panel entry headings.

Roberts opined that the miner operator apparently did not wish to do this. Based upon his experience

as an equipment operator and a face boss in pillar recovery methods, Roberts opined that the miner

operator had approached the fender at an incorrect angle and cut through the entire fender after

holing through.

I find that the testimony of this highly qualified and experienced mine inspector to be entitled

to prevailing weight and that, therefore, I find the violation to have been proven as charged. In

reaching this conclusion I have not disregarded the arguments presented by Big Ridge attempting

to discredit the expert testimony of Roberts. However, I find those arguments unconvincing. I also

find significant the unexplained absence of first hand testimony from the participants in this incident,

namely the miner operator and the foreman Hawkins. 

The Secretary has further alleged that the violation was “significant and substantial.”A

violation is properly designated as "significant and substantial" 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 Division, National Gypsum Co.,

3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the

Commission explained:

In order to establish that a violation of a mandatory standard is significant and substantial

under National Gypsum 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 injury and (4) a reasonable likelihood that the injury in question

will be of a reasonably serious nature. 

See also Austin Power Co. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g 

9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).

33 FMSHRC Page 2244
The third element of the Mathies formula requires that the Secretary establish a reasonable

likelihood that the hazard contributed to will result in an event in which there is an injury. U.S.

Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984), and also that the likelihood of injury be

evaluated in terms of continued normal mining operations. U.S. Steel Mining Co., Inc., 6 FMSHRC

1573, 1574 (July 1984); see also Halfway, Inc., 8 FMSHRC 8, 12 (Jan. 1986); Southern Ohio Coal

Co., 13 FMSHRC 912, 916-917 (June 1991).

In this regard, I find that a roof fall under the circumstances herein was reasonably likely

for several reasons. First, the removal of the coal fender created an excessively wide roof. Based

upon his background and experience (including as an MSHA Roof Control Specialist), Roberts

credibly testified that excessive widths are the primary cause of roof falls. He explained that the 90-

degree perimeter cut created a four-way intersection, with one leg of the intersection unsupported

without roof bolts. Because the fender had been largely removed, the width of the unsupported area

was significantly increased, exposing miners to a roof fall. I further find that Respondent was aware

of the excessive width and the danger posed because it had installed a substantial number of timber

cribs at this location. When perimeter mining is properly performed pursuant to the Plan the mine

need only to place three timbers (without any cribs) at the mouth of the rooms for roof support and

to alert miners to stay out of the unbolted rooms.

A second factor is that the subject mine has a history of unplanned roof falls in four-way

intersections. Roberts testified that there were 75 unplanned falls from 2005 to the time he wrote the

subject order and approximately 120 falls between 2005 and 2010. Roberts noted that all of the falls

occurred at intersections and primarily four-way intersections. In this case, the removal of the fender

increased the cross-sectional area by a minimum of 20 feet beyond the minimum 68 feet limitation

in the Plan. 

According to Roberts, the miner operator was exposed to the hazard at the time the fender

was holed through and while the fender was being removed. He also found that the shuttle car

operators were in this location and also exposed to the hazard. The perimeter cuts were also adjacent

to the active working section near the power center and dump point which were frequented by

foremen. Roberts anticipated that a miner exposed to a roof fall at this location would sustain fatal

crushing injuries since the fall material would typically be six to eight feet thick, the width of the

crosscut and anywhere from 15 feet to 100 feet long. Within the above framework of evidence, I find

that the violation was “significant and substantial” and of high gravity

I further find that the violation was the result of the operator’s unwarrantable failure. Big

Ridge had been, for one thing, recently placed on notice of the specific perimeter mining

requirements of the Plan. Inspector Roberts had issued Citation Number 666740 on October 11,

2007, which involved facts similar to the situation herein. In that case Roberts observed a fender

holed through in two locations in violation of section 75.220(a)(1). Like the present order, this action

violated item 5 of the Plan, since the continuous miner failed to stop and withdraw from the cut. To

terminate that citation Roberts required that production personnel be re-instructed in the

requirements of the same Plan provision at bar.

Based on his background and experience as a section foreman, and his knowledge of the

subject mine, Roberts opined that it was absolutely key that Hawkins ensure proper maintenance of

the fender in this location to protect the miner operator and shuttle car operators during the mining

process. I further find that section foreman Hawkins was grossly negligent. Roby Podoriscki, a mine

33 FMSHRC Page 2245
manager for Big Ridge, explained that a hole through typically occurs due to an inexperienced miner

operator, an incorrect angle of the cut, or a misdirected sight line. Podoriscki acknowledged that the

foreman is ultimately in charge of directing the miner cuts. He testified however that Hawkins was

moving cables on a continuous miner while the fender was being obliterated in this instance. While

there is some evidence that Hawkins may have been suspended or fired specifically for allowing this

incident to occur, I do not consider that evidence herein in determining negligence as it is contrary

to social policy to discourage the taking of steps in furtherance of added safety. See Rule 407,

Federal Rules of Evidence. In any event, it is the well established law that foremen are held to a high

degree of care and that their actions are imputable to the mine operator.

Citation Number 6667476

This citation alleges a “significant and substantial” violation of the standard at 30 C.F.R. §

75.400 and charges as follows:

Combustible material in the form of hydraulic oil, automatic transmission fluid and

oil/fluid-saturated coal dust has been permitted to accumulate immediately beneath

the exhaust pipe of the non-permissible Alpha diesel-powered mantrip, Co. No. MT08. The accumulations are approximately 1/8" to 1/4" in depth along the entirely of

the enclosed 9" x 6' tunnel that houses the drive shaft and exhaust pipe. The exhaust

pipe is neither wrapped with heat resistant material nor otherwise shielded from

contact with these accumulations of combustible material.

The cited standard, 30 C.F.R. §75.400, provides 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.”

Inspector Roberts issued this citation on November 23, 2007, when he observed what he

found to be accumulations of combustible fluids and coal on a mantrip. Roberts explained that he

observed a combination of hydraulic oil, automatic transmission fluid and motor oil, with oil

saturated coal dust, immediately beneath the exhaust pipe of the non-permissible diesel powered

mantrip. According to Roberts, the fluids and coal were in the chamber or tunnel that runs down the

center of the machine from the rear of the engine along the drive shaft and exhaust pipe toward the

rear of the vehicle. Using a tape measure in the tunnel area Roberts estimated the accumulations to

be approximately 1/8 to 1/4 inches deep along the entire area. I find the expert testimony of

Inspector Roberts to be credible and sufficient to prove the violation as charged. 

The Secretary also maintains that the violation was “significant and substantial”. The mantrip

was located on the surface and available for transport underground. It carried 14 miners in and out

of the mine and, they would, according to Roberts, be affected from smoke in the event of a fire.

He designated the violation as “significant and substantial” on the basis that the combustible

materials were in close proximity to the exhaust. He opined that the surface temperature of the

subject exhaust pipe while the vehicle was in use would be sufficient to ignite the material, or could

intensify a fire that started at another location on the machine. Roberts was particularly concerned

in this instance since the exhaust pipe on this vehicle was not wrapped with heat shielding, thus

exposing the fluid to the exhaust heat.

33 FMSHRC Page 2246
While there appears to be no dispute that the various substances cited were combustible at

some temperature I find that the Secretary has failed to sustain her burden of proving the

temperatures at which these materials would ignite and the temperatures to which they were

exposed. The opinion testimony of Inspector Roberts that these materials would ignite from the heat

of the exhaust is simply ipse dixit i.e. based on a bare assertion resting solely on the authority of the

individual expert, and is insufficient without some underlying factual basis. Without that essential

foundation, there is no basis to determine the likelihood of an event or the likelihood of injuries.

Accordingly, I do not find that the Secretary has met her burden of proving that the violation was

“significant and substantial.” Rather, the violation was of lesser gravity.

I find however that the violation was the result of operator negligence. The credible evidence

is that the mixture of combustible fluids and coal had existed for several shifts, was extensive and

was obvious. According to Roberts, the vehicle had an access door that allowed an examiner or

vehicle operator to simply look through to identify the condition. Roberts discovered the condition

in this way. Roberts also explained that there had been an ongoing issue with cleaning

accumulations on equipment. In the previous 18-months there had been more than 150 citations of

the standard at issue. Moreover, Roberts testified that he had had discussions with the mine’s safety

personnel, including Bob Clarida, Bart Schiff, Tom Patterson, (safety director), Mark Cavinder

(business unit manager), and Ricky Phillips, (mine superintendent) and that a significant topic of

these discussions was the accumulations on equipment and equipment clean up programs. This

evidence clearly demonstrates at least a moderate degree of negligence. 

Citation Number: 6674611

As amended, this citation alleges a “significant and substantial” violation of the standard

at 30 C.F.R. § 75.512 and charges as follows:

“Except when testing the machinery, guards shall be securely in place while

machinery is being operated.” The face plate (guard) on the #5 (995 volt) breaker

had been damaged. The face plate had been distorted, opening a 2 inch by 6 inch gap

down the side of the breaker. Exposing bare conductor lead 3 inches inside the

panel.

The cited standard provides as follows:

All electric equipment shall be frequently examined, tested, and properly maintained

by a qualified person to assure safe operating conditions. When a potentially

dangerous condition is found on electric equipment, such equipment shall be

removed from service until such condition is corrected. A record of such

examinations shall be kept and made available to an authorized representative of the

Secretary and to the miners in such mine.

Inspector Bobby Jones had been an MSHA inspector for four years, specializing in coal mine

safety and health, but also has 32 years of underground coal mine experience in many capacities.

Jones testified that he issued the citation at bar on August 8, 2008, after observing a two inch by six

inch opening on a breaker cover panel that exposed the inner conductors of a 995 volt breaker.

According to Jones, the breaker controlled a circuit used to power the continuous miner and,

although a cable was not plugged into the outlet supplied by the circuit, the upstream, or back side,

of the breaker was still energized. The 995 volt circuit controlled by the breaker was but one circuit

33 FMSHRC Page 2247
and outlet that were part of a larger assembly i.e. the number five transformer used to supply

electrical power throughout the production unit. Other circuits and outlets of varying voltages were

supplied by and located on the transformer and were in close proximity to the damaged breaker face

plate. These other circuits supplied electrical power to equipment such as roof bolters, feeder

breakers, chop saws, and microwave ovens. According to Jones, there were numerous pieces of

equipment deriving power from the transformer so there were numerous electrical cords leading

from the transformer, ranging in size from one-and-a-half inches in diameter for a roof bolter cable

to three inches in diameter for a continuous miner cable. 

According to Jones, in addition to plugging and unplugging the cables that supplied the

various pieces of equipment, miners entered the transformer area to perform a number of other tasks

throughout the day, including pre-shift and on-shift examinations, gas checks, breaker resets, and

heating up their meals, either with the help of a microwave oven or, because the transformer is

warm, the transformer itself. Jones testified that miners also used chop saws plugged into the

transformer to cut drill steels generally eight to ten feet in length. There is no dispute that steel

readily conducts electricity when in contact with energized electrical components, such as those

exposed by the damaged breaker panel. Based on the credible testimony of expert witness Bobby

Jones, I find the violation has been proven as charged.

The Secretary also argues that the violation was “significant and substantial.” In this regard,

Inspector Jones testified that numerous electrical cables, some as large as three inches in diameter,

were present on the ground around the damaged breaker panel, along with rocks and chunks of coal.

There is no dispute these objects presented tripping and stumbling hazards. Jones testified that the

floor of underground coal mines is uneven and littered with rocks and chunks of coal. Jones also

testified that there was no ambient lighting in the area and that the miners’ cap lights served as the

sole source of light. Thus, the presence of numerous cables, rocks, and chunks of coal in an unlit

area with an inherently uneven surface made it reasonably likely that, given continued normal

mining operations, a miner would trip and come into contact with the energized conductors exposed

by the damaged breaker panel. Jones further testified, without contradiction, that contact with 995

volt electrical current would most likely result in electrocution. Clearly, the violation was

“significant and substantial”and of high gravity. 

In reaching this conclusion, I have not disregarded Respondent’s assertion that its policy

requiring miners to wear gloves and boots when working with the electrical cables diminished the

likelihood of an accident. However, according to the credible testimony of inspector Jones, the

gloves required by Respondent’s glove policy were plain leather gloves, not voltage-rated electrical

protective gloves. Such gloves are not designed to protect the wearer against electrical current but,

if clean and dry, may have afforded a small, but indeterminate amount of electrical protection. 

Respondent also asserts that miners’ use of rubber boots reduced the likelihood of

electrocution. However, both Jones and Barras testified that rubber boots do not provide protection

from electrocution if a miner falls while in contact with the electrical current, as uninsulated parts

of the miner’s body, such as knees, backs, or shoulders would come into contact with the ground and

thereby allow the electrical current to flow through and exit his body.

Respondent further argues that the presence of rubber mats around the transformer also

provided miners protection against electrocution. However, the mats used by Respondent were not

true electrical protective equipment, rather they were pieces of an old conveyor belt that was no

33 FMSHRC Page 2248
longer suitable for its intended purpose. These mats were not subject to periodic testing and, as

Jones testified and Barras admitted, were not designed to serve as electrical protective equipment

nor were they tested or evaluated to determine quantitatively the electrical protection, if any, they

afforded. The small size of the mats also reduced or negated any electrical protection they would

provide in the event of a fall. The mats, which were approximately two feet square, would not fully

prevent a fallen miner from contacting the earth, thus providing a path for the electrical current to

travel to ground. I also note that since Barras was not present during the inspection and did not

observe the conditions giving rise to the violation, I give his testimony that an accident was unlikely

but little weight.

Jones determined that Respondent exhibited a moderate degree of negligence with respect

to the violation. I find, based on the credible evidence that the condition was obvious and that the

section foreman would have been in the transformer area to perform the on-shift inspection. Based

on his observation of the breaker the previous day, Jones credibly estimated that the condition

existed for up to three shifts. Under the circumstances, I find the operator chargeable with moderate

negligence. 

Citation Number 6674618

This citation alleges a “significant and substantial” violation of Safeguard Notice No.

7583088 and charges as follows:

Two mantraps were observed transporting roof bolting materials in the mantrip

with the miner. DT-18 had 12 bundles of 4 foot roof bolts (5 bolts to the bundle)

standing up in the seat. DT-04 had 7 bundles of 4 foot roof bolts (5 bolts to the

bundle) standing up in the seat, 28 chain in the passenger seat behind the driver.

As amended, the cited safeguard notice, No. 7583088 issued by former MSHA inspector

John Winstead on July 12, 2006, provides as follows:

DT 15-160 was observed coming out of the mine with a ram car

bed jack adjacent to the driver unsecured in the vehicle. This is a

notice to provide safeguards requiring that supplies or tools, except

small hand tools or instruments, should not be transported with

men at this mine. 

 On August 11, 2009, Inspector Jones accompanied underground by Respondent’s

representative Donnie Hughes, observed two diesel-powered mantrips designated DT-18 and DT-04,

transporting materials in the passenger compartment along with miners. Mantrip DT-18, which

contained a driver and a passenger, had twelve bundles of four-foot roof bolts standing up in the rear

seat behind the driver. Each bundle contained five roof bolts, with each bolt weighing approximately

two pounds. Mantrip DT-04 contained seven bundles of roof bolts and a bucket of chain in the seat

behind the driver, along with 28 steel chain hangers on the floorboard. Jones issued the citation at

bar based upon the cited safeguard notice.

33 FMSHRC Page 2249
Respondent argues that the citation at bar was invalid because the safeguard notice upon

which it was based was invalid. More specifically Respondent argues that the nature of the hazard

was not described with the requisite specificity. The Secretary bears the burden of establishing the

validity of the safeguard by showing that the inspector evaluated the specific conditions at the mine

and determined that the safeguard was warranted in order to address an actual transportation hazard.

Southern Ohio Coal Co., 14 FMSHRC 1, 14 (Jan. 1992). A safeguard must identify with specificity

the nature of the hazard involving the transportation of miners or materials at which it is directed.

Southern Ohio Coal Co., 7 FMSHRC 509, 512 (April 1985). See also Rochester & Pittsburgh Coal.,

14 FMSHRC 37 (Jan. 1992).

Indeed, even MSHA’s Program Policy Manual (“PPM”), Vol. 5 Subpart O, requires that

a valid safeguard should identify the nature of the hazard to which it is directed. The PPM states

as follows:

Where an inspector determines that a safeguard notice is necessary in order to

address a transportation hazard, the specific safeguard requirements are to be

determined by the inspector based on the actual, specific conditions or practices that

constitute a transportation hazard at that particular mine. The inspector should

document either in the notice or in the inspector’s notes the conditions which provide

the basis for the issuance of the safeguard notice. The safeguard notice should also

identify the nature of the hazard to which it is directed. For example, if a notice to

provide safeguards is issued to require a specific minimum clearance distance

between pieces of haulage equipment, the safeguard should also include a statement

of the hazards that the clearance distance is intended to prevent, such as injury to

equipment operators from pieces of rib coal which could be knocked loose or, if the

area is a walkway, injury to pedestrians by the equipment due to insufficient

clearance.(emphasis added).

The Secretary’s argument that a description of the condition is, in effect, a description of the

hazard is contrary to both the program policy manual and commission case law. Clearly, the

safeguard notice at issue did not identify with specificity the nature of a hazard to which it was

directed and that Notice is therefore invalid. Accordingly, the citation at issue based on that Notice

is also invalid and must be vacated. 

Significantly, both inspectors also admitted at hearings that the subject Notice of Safeguard

identified only the condition and not the hazard, if any, to which it was directed. Former Inspector

Winstead testified in this regard in the following colloquy at hearings:

Q. Sir, what you described for me was the condition you observed, right? The bed

jack was unsecured, that’s the condition, correct?

A. Yes (Tr. 426)

*** *

Q. But your safeguard does not also define a hazard, does it?

A. No. (Tr. 427)

33 FMSHRC Page 2250
Inspector Jones reviewed the same Notice of Safeguard that he relied upon when he issued

the citation at bar and also admitted that no hazard was identified in that the Notice. He testified in

this regard in the following colloquy:

Q. So there is no hazard defined in this safeguard as it’s written?

A. As it’s written, no (Tr. 407)

Citation No. 6673743

This citation, issued pursuant to section 104(a) of the Act alleges a “significant and

substantial” violation of the standard at 30 C.F.R. § 75.503 and charges as follows:

The #872 Stamler coal hauler being used on the No. 3 unit was not being maintained

in approved condition. An opening in excess of .005 inches was present under the

lid of the operators side tram motor.

The cited standard provides that “[t]he operator of each coal mine shall maintain in

permissible condition all electric face equipment required by §§ 75.500, 75.501, 75.504 to be

permissible which is taken into or used inby the last open crosscut of any such mine.” 

MSHA Inspector Dean Cripps has a degree in electrical engineering technology and

specializes in electrical installations in coal mines. He has additional experience as a coal miner. On

October 12, 2008, Cripps issued the citation at bar after he inspected the number 872 stamler coal

hauler and found an excessive opening under the lid of the tram motor. He explained that the

maximum opening permitted is .004 of an inch, and the opening in this instance was .022. There

is no dispute that the excessive opening was a violation of § 75.503. In this regard, Cripps testified

that the specific hazard posed by the violation was the ignition of methane. He explained that the

coal hauler transports coal from the continuous mining machine to the feeder and stops underneath,

and in contact with, the tail of the continuous miner while it empties coal onto the hauler. According

to Cripps, the vehicle, therefore, regularly operates close to the coal face where methane may be

liberated. He noted however, that if the vehicle is maintained in permissible condition, sparking

within the various compartments on the machine will not cause a methane ignition. 

Cripps explained that when the subject lid to the tram motor compartment is shut, and the

opening is within permissible parameters, an explosion proof environment is created within the

motor compartment. Although methane may still enter the enclosure, the flame and the heat resulting

from an explosion inside the container would not ignite methane that may be present outside of the

enclosure. The explosive forces and gases are sufficiently cooled by the time they exit through the

small permissible opening and across the flame vent or flame arresting path (i.e., the joint between

the lid and the motor). Because of this cooling process, there is insufficient heat to ignite methane

outside the compartment.

According to the credible testimony of Inspector Cripps, the subject hauler is used inby the

last open crosscut where coal is being extracted and methane is liberated. When the methane is

liberated the ventilation air carries it over the miner and the hauler. He further noted that the

presence of coal dust, makes methane more explosive in that when the dust generated by the

33 FMSHRC Page 2251
continuous miner and is mixed with methane it can lower the explosive range of methane. According

to the inspector, the hauler is also exposed to methane as it travels in the last open crosscut or the

return entry to and from the feeder and continuous miners. Cripps testified credibly that the

presence of methane and its exposure levels are unpredictable. He also noted the subject mine is

known to liberate in excess of two million cubic feet of methane in a 24-hour period, which is why

it is on a 5-day spot ventilation inspection regimen.

Cripps further testified that sparking or arcing occurs in the tram motor compartment in its

normal operation. The motor has brushes and commutators that create sparking and arcing while

tramming. I find that Cripps’ testimony is entirely credible and established that it was reasonably

likely for an ignition and serious injury to occur in light of (1) the excessive opening, (2) the arcing

in the tram motor compartment, (3) that the subject mine was known to liberate large quantities of

methane, and (4) the hauler regularly operated near the face and in the last open crosscut where

methane is liberated from the coal. The violation was accordingly, “significant and substantial”and

of high gravity.

The Secretary also maintains that the violation was the result of moderate negligence. In this

regard I find from the credible evidence that the opening was easily identified that qualified

electricians were permitted to perform work on this vehicle and that the compartment lid was bolted

on the machine and the electrician who installed the lid did so while gob was in the compartment

preventing it from shutting flush. Despite the obvious nature of the condition, Respondent failed to

timely correct it and permitted the coal hauler to operate in face areas. I find accordingly that the

violation was the result of moderate negligence.

Civil Penalties

Under Section 110(i) of the Act, the Commission and its judges must consider the following

factors in assessing a civil penalty: the history of violations, the negligence of the operator in

committing the violation, the size of the operator, the gravity of the violation, whether the violation

was abated in good faith and whether the penalties would affect the operators ability to continue in

business.

Big Ridge is a large size mine operator and there is no evidence that the penalties imposed

herein will affect its ability to remain business. Big Ridge had a significant history of violations in

the 24 months preceding each of the charging document at issue. There is no dispute that the

violations were abated in good faith. The gravity and the negligence history have been previously

discussed.

33 FMSHRC Page 2252
ORDER

Citation No. 6674618 is hereby vacated. Charging Documents Nos. 6673440, 6673462,

6674611 and 6673743 are hereby affirmed as issued and Big Ridge Inc., is directed to pay civil

penalties of $5,600.00, $60,000.00, $4,000.00 and $2,500.00 respectively for the violations charged

therein within 40 days of the date of this decision. Citation No. 6667476 is affirmed but without

“significant and substantial” findings and Big Ridge Inc., is directed within 40 days of the date of

this decision to pay a civil penalty of $8,000.00 for the violation charged therein. Pursuant to the

motion to approve settlement filed herein, Big Ridge is further directed within 40 days of the date

of this decision to pay civil penalties of $272, 961.00. The Secretary has vacated Citation Nos.

6668239 and 6683077.

/s/ Gary Melick 

Gary Melick

Administrative Law Judge

202-434-9977

Distribution:

Tyler Mcleod, Esq., and Beau Ellis, Esq., U.S. Department of Labor, Office of the Solicitor,

1999 Broadway, Suite 800, Denver, CO 80202

Arthur M. Wolfson, Esq., R. Henry Moore, Esq., and Jason P. Webb, Esq, Jackson Kelly PLLC,

Three Gateway Center, 401 Liberty Avenue, Suite 1340, Pittsburgh, PA 15222

/to

33 FMSHRC Page 2253
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, D.C. 20001

September 20, 2011

JIM WALTER RESOURCES, INC., : CONTEST PROCEEDING:

Contestant, :

: Docket No. SE 2008-962-R

v. : Order No. 7693789; 07/24/2008

:

SECRETARY OF LABOR, : Mine ID 01-01401

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), :

Respondent. :

:

 :

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING:

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. SE 2009-267

 Petitioner, : A.C. No. 01-01401-173519-02

:

v. : Mine: No. 7 Mine

:

JIM WALTER RESOURCES, INC., :

 Respondent. :

SUMMARY DECISION

Before: Judge Bulluck

These cases are before me on Notice of Contest and Petition for Assessment of Civil

Penalty filed by Jim Walter Resources, Incorporated (“JWR”), against the Secretary of Labor

(“Secretary”), acting through her Mine Safety and Health Administration (“MSHA”), pursuant to

section 105(d) of the Federal Mine Safety and Health Act of 1977 (“The Act”), 30 U.S.C. 

§ 815(d). JWR challenges an Order issued by MSHA under section 104(d)(2) of the Act,

alleging a violation of the Secretary’s mandatory safety standard at 30 C.F.R. § 75.362(b).

The parties have filed cross Motions for Summary Decision. Pursuant to Commission

Rule 67(b), “[a] motion for summary decision shall be granted only if the entire record, including

the pleadings, depositions, answers to interrogatories, admissions, and affidavits, shows: (1) that

there is no genuine issue as to any material fact; and (2) that the moving party is entitled to

summary decision as a matter of law.” 29 C.F.R. § 2700.67. 

It is well settled that summary decision is an extraordinary measure and the Commission

has analogized it to Rule 56 of the Federal Rules of Civil Procedure, which the Supreme Court

has construed to authorize summary judgment only “upon proper showings of the lack of a

genuine triable issue of material fact.” Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9

33 FMSHRC Page 2254
(Jan. 2007) (citations omitted). When considering a motion for summary decision, the

Commission has noted that, “the Supreme Court has stated that ‘we look at the record on

summary judgment in the light most favorable to . . . the party opposing the motion,’ and that

‘the inferences to be drawn from the underlying facts contained in [the] materials [supporting the

motion] must be viewed in the light most favorable to the party opposing the motion.’” Hanson

Aggregates New York, Inc., 29 FMSHRC at 9 (quoting Poller v. Columbia Broadcasting Sys.

Inc., 368 U.S. 464, 473 (1962) and United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

Based upon the uncontested facts represented by the parties, I find that there is no

genuine issue as to any material fact. Having reviewed the parties’ Motions, I conclude that, for

the reasons stated below, the Secretary is entitled to summary decision as a matter of law.

I. Stipulations

The parties stipulated as follows:

1. The Administrative Law Judge and the Federal Mine Safety and Health Review Commission

have jurisdiction to hear and decide this civil penalty proceeding pursuant to section 105 of the

Federal Mine Safety and Health Act of 1977;

2. JWR is a mine operator subject to the jurisdiction of the Federal Mine Safety and Health

Administration;

3. JWR is the owner and operator of the No. 7 Mine located in Brookwood, Alabama;

4. MSHA Inspector John Terpo was acting in his official capacity as an authorized representative

of the Secretary of Labor when he issued Order No. 7693789; and

5. Order No. 7693789 was served on JWR or its agent as required by the Act.

JWR Mot. at 1-2.

II. Factual and Procedural Background

This matter concerns JWR’s alleged failure to conduct an on-shift examination of the belt

conveyor haulageways in sections 9 and 10 of Mine No. 7. On July 24, 2008, MSHA Inspector

John Terpo arrived at the No. 7 Mine to conduct a regular inspection. Sec’y Mot. at 3. While

reviewing the pre-shift and on-shift examination books, Terpo noticed that belts 9, 10A, and 10B

were described as “idle” during the July 24 owl shift. Sec’y Mot. at 3. Clint Webster, the

Control and Operations monitor, gave Terpo a computer printout which indicated that the belts at

issue had run from 11:00 p.m. until 12:18 a.m., and again from 5:54 a.m. to 7:00 a.m. Sec’y

Mot. at 3. Belts 9, 10A, and 10B are located in the southwest end of the mine. Sec’y Mot. at 3. 

The “owl shift” precedes the day shift and runs from 11:00 p.m. to 7:00 a.m. Sec’y Mot. at 3. 

During the owl shift, coal was being produced in the north end of the mine, six to ten miles from

sections 9 and 10. Sec’y Mot. at 3. Miners were present in sections 9 and 10 on the July 24 owl

33 FMSHRC Page 2255
1

 The Commission’s vote in that case was evenly split and, therefore, “the effect of the

split decision is to allow the judge’s decision to stand as if affirmed.” 23 FMSHRC at 463.

shift performing maintenance, bolting, rockdusting, and other mining-related work. JWR Mot. at

2, 5. 

Inspector Terpo issued 104(d)(2) Order No. 7693789, charging JWR with a violation of

30 C.F.R. § 75.362(b). The violation was deemed significant and substantial (“S&S”) and an

unwarrantable failure to comply with the standard. The Secretary proposed a specially assessed

penalty of $70,000.00. JWR contested the Order and the case was scheduled for hearing. 

Subsequently, however, the parties elected to file cross motions for summary decision.

III. Findings of Fact and Conclusions of Law

JWR admits that an on-shift examination of the 9, 10A, and 10B belt haulageways was

not performed during the owl shift of July 24, 2008. JWR Mot. at 2, 4.

The cited standard provides as follows:

During each shift that coal is produced, a certified person shall examine

for hazardous conditions along each belt conveyor haulageway where a

belt conveyor is operated.

30 C.F.R. § 75.362(b).

The issue for resolution in this case is whether section 75.362(b) requires an operator to

conduct an on-shift examination of each belt conveyor haulageway where a belt is being run for

any reason, so long as coal is being mined on some section of the mine during that shift.

Regarding section 75.362(b), the Commission has stated that “[t]he standard’s regulatory

history supports a plain meaning approach.” Rawl Sales & Processing Co., 23 FMSHRC 463 at

473 (May 2001), accord Consolidation Coal Co., 18 FMSHRC 1541, 1547-48 (Sept. 1996). In

Rawl, the Commission affirmed the ALJ’s summary decision in favor of the operator.1

 In that

case, the ALJ found that no on-shift examination of the belt haulageway was required because no

miners were underground during the particular shift in question. See generally Rawl Sales &

Processing Co., 21 FMSHRC 219 (ALJ) (Feb. 1999). That case is distinguishable from the case

at hand because, here, the parties acknowledge that miners were working underground during the

owl shift on July 24 while coal was being produced elsewhere in the active workings of the same

mine.

The phraseology of section 75.362(b), “during each shift that coal is produced,” refers to

a time and not a place. (emphasis added). There is no dispute that during the owl shift of July

24, 2008, coal was being produced in the north end of No. 7. The term “each belt conveyor

haulageway” contemplates multiple belts and the duty to inspect all of them. (emphasis added). 

This is the case here.

33 FMSHRC Page 2256
In the course of mining, belts are “operated” for various reasons. The 9, 10A, and 10B

belts were turned off for 6 hours of the 8-hour owl shift. Miners arrived on sections 9 and 10

around 11:50 p.m. and the belts were still running until 12:18 a.m. JWR Mot. at 5, 6-7. During

this time, the belts were carrying the remainder coal from the evening shift out of the mine. 

JWR Mot. at 6. The belts were reactivated at the end of the owl shift “[i]n order to assure that a

proper on-shift examination could be made on the day shift.” JWR Mot. at 6-7. It is unclear

whether the miners were still on the sections when the belts were turned on at 5:54 a.m. at the

end of the owl shift. 

As mentioned previously, miners were present on sections 9 and 10 performing duties

associated with producing, although not actually cutting, coal such as bolting, rockdusting, and

servicing equipment. JWR Mot. at 5. Whenever belts are running, miners are exposed to

potential hazards that can arise during their operation. 

The legislative history of the Act points to Congress’ concern with hazards associated

with belt lines, noting that “[m]any fires occur along belt conveyors as a result of defective

electric wiring, overheated bearings, and friction; and therefore, an examination of belt

conveyors is necessary.” S. Rep. No. 91-411, at 57 (1969), reprinted in Senate Subcomm. on

Labor, Comm. on Labor and Public Welfare, Part I Legislative History of the Federal Coal Mine

Health and Safety Act of 1969, at 183 (1975).

Based on the foregoing, I find that JWR violated section 75.362(b) when it failed to

conduct an on-shift examination of the belt haulageways in sections 9 and 10 of Mine No. 7,

during the owl shift of July 24, 2008.

Significant & Substantial

This violation was designated as significant and substantial by the inspector. A violation

is significant and substantial (“S&S”) when the violation is “of such nature as could significantly

and substantially contribute to the cause and effect of a coal or other mine safety or health

hazard.” 30 U.S.C. § 814(d)(1). A violation is properly designated as 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 reasonable serious nature.” Cement Div.,

Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In order to establish that a violation is

significant and substantial, 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); see also, Buck Creek Coal, Inc. v. FMSHRC,

52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-4 (5th Cir.

1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies

criteria). The evaluation is made in terms of “continued normal mining operations.” U.S. Steel

33 FMSHRC Page 2257
Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). Moreover, resolution of whether a

violation is S&S must be based “on the particular facts surrounding the violation.” Texasgulf,

Inc., 10 FMSHRC 498, 501 (April 1998); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007

(Dec. 1987).

The fact of the violation has been established. The focus of the S&S analysis here is

whether the violation was reasonably likely to result in an injury producing event. In U.S. Steel

Mining Co., the Commission provided further guidance:

We have explained that the third element of the Mathies formula “requires that

the Secretary establish a reasonable likelihood that the hazard contributed to will

result in an event in which there is an injury.” We have emphasized that, in

accordance with the language of section 104(d)(1), it is the contribution of a

violation to the cause and effect of a hazard that must be significant and

substantial.

U.S. Steel Mining Co., 7 FMSHRC 1125, 1129 (Aug. 1985) (citations omitted). Lack of an onshift examination of the belt haulageways is likely to lead to a failure to identify serious

conditions that could result in injuries ranging from cuts, bruises, sprains, broken bones and

contusions to fatalities. Conditions such as faulty wiring, malfunctioning equipment, and falling

objects present discrete safety hazards, such as slip and fall or the possibility of fire or explosion. 

If any of these events were to occur, it is reasonably likely that injuries resulting to miners would

be of a reasonably serious nature.

With respect to belt haulageways in sections 9 and 10, the belts were running while

miners were working on the sections, and for a period of time the belts were transporting coal. 

Should a defective wire or belt friction have generated a spark, it is reasonably likely that it

would have lead to a fire or explosion. Belt fires are a significant hazard associated with mining,

as evidenced by Congress’ concern with belt line hazards, noted above. Oxygen and a fuel

source – elements necessary for a fire to occur – were present. Friction from rollers could have

produced an ignition source that could have lead to a fire. As is possible with belt fires, a fire

could have spread throughout the mine. Furthermore, smoke from a fire could have created a

serious safety hazard. It could have obstructed the miners’ sight, preventing or delaying escape

from the mine, and could have exposed them to inhalation of toxic gases. Additionally, should a

belt defect, such as a stuck roller or a ripped or loose belt, have gone undetected, it is reasonably

likely that a miner situated in close proximity to the belt could have tripped and fallen or

otherwise become entangled in the belt’s moving parts, causing a reasonably serious injury.

I find that the failure to conduct an on-shift examination of the belt haulageways in

question for any possible defects or conditions requiring attention was reasonably likely to result

in injury causing events of a serious nature and, therefore, that the violation was S&S. 

Accordingly, I affirm the Secretary’s S&S finding.

33 FMSHRC Page 2258
2

 Section 75.362(a)(1) requires that “[a]t least once during each shift . . . a certified

person designated by the operator . . . conduct an on-shift examination of each section where

anyone is assigned to work during the shift. . . .” According to JWR, this examination was

conducted because miners were assigned to work in sections 9 and 10. JWR Mot. at 9. I find

that JWR’s examination under 75.362(a)(1) of the sections where crews were scheduled to work

weighs against saddling the operator with indifference or reckless disregard in failing to inspect

the subject belt haulageways under section 75.362(b). 

Unwarrantable Failure

The Order was also designated as an unwarrantable failure to adhere to the requirement

of the standard, as set forth in section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1).

Unwarrantable failure is considered “aggravated conduct constituting more than ordinary

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

is “characterized by such conduct as “reckless disregard,” “intentional misconduct,”

“indifference,” or a “serious lack of reasonable care.” Id. at 2003-4; Rochester & Pittsburgh

Coal Corp., 13 FMSHRC 189, 193-4 (Feb. 1991).

The Commission has set forth the following factors to be considered in making an

unwarrantable failure analysis: “the extensiveness of the violation, the length of time that the

violative condition has existed, the operator’s efforts to eliminate the violative condition, and

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

Consolidation Coal Co., 18 FMSHRC 1541, 1548 (Sept. 1996) (citing Mullins & Sons Coal Co.,

16 FMSHRC 192, 195 (Feb. 1994)).

The violation was based on the activities of one shift. No evidence has been proffered by

the Secretary that JWR has been cited for violating this standard at any time in the past. As

stated previously, miners were present on sections 9 and 10 while the belts were running for

approximately 1.5 hours. During that time, coal was transported on the belts for approximately

30 minutes. This short length of time is a mitigating factor.

Moreover, as JWR points out, it had a good faith belief that there was no duty to conduct

an examination of the subject belt haulageways on the July 24 owl shift. In fact, JWR did

conduct an on-shift examination pursuant to another subsection of the standard, section

75.362(a)(1).2 Therefore, this violation does not rise to the level of aggravated conduct

contemplated by the Act.

Consequently, I find that the Secretary has not met her burden of establishing aggravated

conduct contemplated by the Act, and that the violation was a result of JWR’s moderate

negligence, not its unwarrantable failure to comply with the standard. Accordingly, the Order

shall be modified to a citation issued pursuant to section 104(a) of the Act.

Penalty

While the Secretary has proposed a specially assessed civil penalty of $70,000.00, the

judge must independently determine the appropriate assessment by proper consideration of the

33 FMSHRC Page 2259
3

 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

six penalty criteria set forth in section 110(I) of the Act, 30 U.S.C. § 820(j). See Sellersburg Co.

5 FMSHRC 287, 291-92 (March 1993), aff'd, 763 F.2d 1147 (7th Cir. 1984).

In assessing the appropriate penalty for this violation, I have considered that JWR is a

large operator. JWR has not been cited for a similar violation and, therefore, I do not find its

history to be an aggravating factor in assessing the penalty. I have found the violation to be

relatively serious, given that the lack of inspection of the belt haulageways in question could

potentially expose miners to serious injuries. Moreover, I have ascribed moderate negligence to

the operator. Therefore, having considered JWR's large size, ability to remain in business,

history of violations, seriousness of violation, moderate degree of negligence, good faith

abatement and other mitigating factors, I find that a $20,000.00 penalty is appropriate.

ORDER

WHEREFORE, JWR’s Motion for Summary Decision is DENIED, and the Secretary’s

Motion for Summary Decision is GRANTED. Order No. 7693789 is hereby MODIFIED to a

citation issued under section 104(a) of the Act, with the degree of negligence reduced to

“moderate.” It is further ORDERED that JWR pay a civil penalty of $20,000.00 within 30 days

of the date of this decision.3 Accordingly, these cases are DISMISSED.

_/s/ Jacqueline R. Bulluck____________

Jacqueline R. Bulluck

Administrative Law Judge

Distribution: (Certified Mail)

Uche N. Egemonye, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street,

S.W., Room 7T10, Atlanta, GA 30303

Warren B. Lightfoot, Jr., Esq., Maynard, Cooper & Gale, P.C., 1901 Sixth Ave. North, 2400

Regions/Harbert Plaza, Birmingham, AL 35203

/amc

33 FMSHRC Page 2260
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON, D.C. 20001

September 21, 2011

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS

 MINE SAFETY AND HEALTH : 

 ADMINISTRATION, (MSHA), : 

 Petitioner : Docket No. KENT 2009-444

 : A.C. No. 15-18911-170135-01

v. :

 : Docket No. KENT 2009-445

 : A.C. No. 15-18911-170135-02

 CAM MINING, LLC : 

 Respondent : Docket No. KENT 2009-446

 : A.C. No. 15-18911-170135-03

 

SUMMARY DECISION

On August 26, 2011 Respondent filed, inter alia, a motion for summary decision in these

proceedings for the Secretary’s failure to establish adequate cause for her late filing of the petitions

for civil penalties herein. To date the Secretary has not responded to the motion and the Respondent’s

proffered statement of facts is therefore accepted as undisputed.

Commission Rule 67(b), 29 C.F.R. § 2700.76(b) provides that “a motion for summary decision

shall be granted only if the entire record, including the pleadings, depositions, answers to

interrogatories, admissions, and affidavits, shows: (1) That there is no genuine issue as to any

material fact; and (2) That the moving party is entitled to summary decision as a matter of law”.

It is now undisputed that on December 3, 2008, the Department of Labor’s Mine Safety

Health Administration (MSHA) Office of Assessments issued Assessment No. 000170135. On

December 5, 2008, the assessment was sent to CAM Mining, LLC (CAM) by Federal Express and

was delivered to CAM on December 9, 2008. 

After reviewing and then deciding to contest the majority of the assessment, counsel for

Respondent returned the assessment form on December 12, 2008 and asked for a hearing. That

assessment form was received by MSHA on December 16, 2008. MSHA’s Data Retrieval System

then showed the citations and orders were in contest.

As agreed to by MSHA, the Petitions for Assessment should have been filed by January 29,

2009. No petition was filed. On March 24 and April 23, 2009, counsel for Respondent contacted

MSHA Solicitor, John Mulvey, about the missing petition and provided mailing information and

delivery information on the assessment. Mr. Mulvey informed said counsel that the matter was being

looked into. On April 27, 2009, Mr. Burke, the District 6 Conference and Litigation Representative

(CLR), filed three Motions to Allow Late Filing, all listing the same reason. The original motion

claimed the Petitions for Assessment were not filed because the litigation packet was mis-delivered

to an S. Iverson, who does not work for MSHA.

However, all the documents that MSHA based its Motion to Allow Late Filing on were the

original assessment forms – not a litigation packet. In fact, the dates relied upon all predate the time

33 FMSHRC Page 2261
Respondent actually asked for a hearing. All of the documents focus on a December 9, 2008

delivery, three days before Respondent even contested the assessment and asked for a hearing. The

Secretary could not have generated a Hearings Package, as no hearing had been requested on

December 5, 2008. The Secretary has provided no reason why the she failed to generate Petitions

for Assessment and why they were not filed until April 27, 2009, some four months after it was due.

It appears that, but for the questions of Respondent’s counsel, Petitions would not have been filed.

This Commission permits the late filing of penalty petitions beyond the 45 days provided in

Commission Rule 28, 29 C.F.R. § 2700.28, where the Secretary demonstrates adequate cause for

the delay and where the respondent fails to show prejudice from the delay.” Lesueur-Richmond

Slate Co., 21 FMSHRC 98, 99 (Jan. 1999) (citing Salt Lake County Road Dept., 3 FMSHRC 1714,

1716 (July 1981)). In “the event the Secretary demonstrates adequate cause, justice may require that

the case nevertheless be dismissed if the operator can demonstrate that it was prejudiced in the

preparation of its case by the stale penalty proposal.” Cactus Canyon Quarries of Texas, Inc., 25

FMSHRC 262, 265 (March 2002).

In this case, the Secretary has shown no factually supportable reason for the late filing. As

noted in the undisputed statement of facts, the Secretary bases her entire argument for late filing on

the representation that a litigation packet was mis-delivered. However, it is now also undisputed

that the Secretary’s argument relates to the original assessment, dated December 3 and overnighted

to Respondent on December 5. The December 9 signature, “S. Iverson”, cited by the Secretary is

in fact the date Respondent received the assessment. Within three days of receiving the assessment,

on Dec. 12, 2008, Respondent asked for a hearing. 

Under the circumstances, I find that there has been no factually supported reason shown for

why the petitions were not filed by January 29, 2009 as required by Commission Rule 28.

Accordingly, without a showing of any cause, no less adequate cause, these petitions must be

dismissed.

Order

Docket Nos. Kent 2009-444, Kent 2009-445 and Kent 2009-446 are hereby dismissed.

/s/ Gary Melick 

Gary Melick

Administrative Law Judge

(202) 434-9977

33 FMSHRC Page 2262
Distribution:

Lora J. Manson, Esq., U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue North,

Suite 420, Nashville, TN 37219

Mark Heath, Esq., Spilman, Thomas & Battle, PLLC, 300 Kanawha Blvd., East, P.O. Box 273,

Charleston, WV 25321

/to

33 FMSHRC Page 2263
1

 30 C.F.R. § 46.2(g) provides: 

(1) Miner means: 

(continued...)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

September 23, 2011

USA CLEANING SERVICE & 

 BUILDING MAINTENANCE,

 Petitioner

v.

 

SECRETARY OF LABOR, MINE

 SAFETY AND HEALTH

 ADMINISTRATION (MSHA), 

 Respondent

 :

 :

 :

 :

 :

 :

 :

 :

 :

 :

EQUAL ACCESS TO JUSTICE

PROCEEDING

Docket No. EAJ 2011-01

AC No. 12-00065-241462-A2061

Mine: Essroc Cement Corp.

DECISION

Appearances: Henry Chajet, Esq., R. Brian Hendrix, Esq., and Gregory M. Louer, Esq.,

Patton Boggs LLP, Washington, D.C., for Petitioner;

Linda M. Hastings, Esq., Office of the Solicitor, U.S. Department of

Labor, Cleveland, Ohio, for Respondent. 

Before: Judge McCarthy

This case is before me on an Application for Award of Fees and Expenses under the

Equal Access to Justice Act (EAJA) (5 U.S.C. § 504). USA Cleaning Service and Building

Maintenance (USA Cleaning) filed the application against the Secretary of Labor's Mine Safety

and Health Administration (MSHA) based upon the vacation of a contest proceeding (Docket

No. Lake 2011-384R) that USA Cleaning brought against the Secretary pursuant to section

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

Factual and Procedural Background

Since 1987, Essroc Cement Corporation has contracted with USA Cleaning to provide

janitorial services in the offices, break rooms, locker rooms, and bathrooms located in its

Logansport facility. Pet’r Application for Fees at 1. In accordance with 30 C.F.R. § 46.11(b),

Essroc provides site-specific hazard training to USA Cleaning employees that work at the mine

site. Id. at 2. On February 14, 2011, MSHA issued Order No. 6497182 pursuant to section

104(g)(1) of the Act. That Order required USA Cleaning to immediately withdraw three janitors

from the Logansport facility. The MSHA inspector justified this order by claiming that the

janitorial staff should be classified as miners under the Mine Act1

 and 30 C.F.R. § 46.5(a) would

33 FMSHRC Page 2264
1 (...continued)

(i) Any person, including any operator or supervisor, who works at a mine

and who is engaged in mining operations. This definition includes

independent contractors and employees of independent contractors who

are engaged in mining operations; and 

(ii) Any construction worker who is exposed to hazards of mining

operations. 

(2) The definition of “miner” does not include scientific workers; delivery

workers; customers (including commercial over-the-road truck drivers); vendors;

or visitors. This definition also does not include maintenance or service workers

who do not work at a mine site for frequent or extended periods.” 

30 C.F.R. § 46.2(h) provides: 

Mining operations means mine development, drilling, blasting, extraction,

milling, crushing, screening, or sizing of minerals at a mine; maintenance and

repair of mining equipment; and associated haulage of materials within the mine

from these activities. 

require them to receive twenty-four hours of comprehensive new miner training before being

allowed to return to work at the plant. 

On February 17, 2011, USA Cleaning filed a Notice of Contest and a Motion for

Expedited Consideration concerning Order No. 6497182. The next day, I was assigned this case

and a conference call was promptly scheduled to discuss USA Cleaning’s Motion for Expedited

Consideration. On February 24, 2011, after the Solicitor reviewed the case for a mere 48 hours,

the Secretary vacated the contested order and USA Cleaning was free to resume work at the

Logansport facility. Sec’y Answer at 4. 

The Secretary filed a Motion to Dismiss the contest proceeding on March 15, 2011. On

March 21, 2011, I issued an Order granting the Secretary’s motion. My Order expressly noted

that it did not address any claims or arguments about attorney fees under the EAJA.

In its EAJA application, USA Cleaning asserts that despite several attempts to convince

MSHA to vacate an alleged, clearly erroneous order, the Secretary ended her “vigorous

prosecution” only after she inferred from the conference call that I may be inclined to grant USA

Cleaning’s Motion for Expedited Consideration. Pet’r Resp. to Sec’y Answer at 3. USA

Cleaning argued that it was a “prevailing party” in the underlying adversarial adjudication and

that it met the EAJA’s eligibility requirements with regards to size and net worth of the

company. Pet’r Application for Fees at 6-7. Therefore, USA Cleaning claimed $22,000 in legal

fees and expenses connected to the underlying contest proceeding and subsequent EAJA action. 

Disposition & Analysis

The EAJA provides for the award of attorney's fees and other expenses to a prevailing

party against the United States or an agency thereof, unless the position of the government “was

33 FMSHRC Page 2265
2

 I note that under 5 U.S.C. § 504(a)(4) and 29 C.F.R. 2704.100, a non-prevailing party is

eligible for an award of legal fees and expenses if the demand of the Secretary is substantially in

excess of the decision of the Commission and unreasonable, unless the applicant party has

committed a willful violation of law or otherwise acted in bad faith, or special circumstances

make an award unjust. The underlying proceeding, however, was a contest proceeding and the

Secretary had yet to access a penalty against USA Cleaning. Furthermore, USA Cleaning did

not claim recovery based on its status as a “non-prevailing party.” Given these facts, I find that

this alternative standard under 5 U.S.C. § 504(a)(4) does not apply to the case at bar. 

3

 Even USA Cleaning found it “odd” that the Secretary did not attempt to challenge USA

Cleaning’s claimed “prevailing party” status. Pet’r Resp. to Sec’y Answer at 5.

substantially justified or that special circumstances make an award unjust.” 5 U.S.C. 504 (a)(1); 

see also 28 U.S.C. § 2412(d)(1)(A). USA Cleaning argues that the Secretary's allegation that it

was non-compliant with 30 C.F.R. § 46.5 was “not substantially justified” and that it is eligible

for an award under the EAJA as the prevailing party in the contest proceeding.2

The Secretary answers that USA Cleaning is not eligible for an award under the EAJA

because the underlying proceeding was not an adversarial adjudication and that the inspector’s

conclusions were substantially justified in law and fact. Sec’y Answer at 3-4. I need not decide

the arguments outlined by the Secretary, however, since USA Cleaning does not meet the basic

threshold of being classified as a “prevailing party” under the EAJA.3

In establishing the parameters of what constitutes a “prevailing party” under the EAJA,

both USA Cleaning and the Secretary appear to have looked to the Commission’s decision in

MSHA v. Black Diamond Construction Inc., 21 FMSHRC 1188 (Nov. 1999). In that case, the

Commission allowed a contractor to recover attorneys’ fees and expenses under the EAJA when

the Secretary vacated a civil penalty proceeding the day before the case was scheduled for

hearing. Id. at 1191. The Commission focused its analysis on whether MSHA’s pre-litigation

position throughout a rather lengthy pre-trial period was “substantially justified.” As USA

Cleaning points out, the Commission’s decision in Black Diamond did not provide a firm

definition of a “prevailing party” under the EAJA. Pet’r Application for Fees at 7. Rather, I

infer from the Commission’s decision that a judgment on the merits was not a necessary

prerequisite in establishing EAJA eligibility. 

Given the Commission’s ambiguity on the “prevailing party” status of the applicant in

Black Diamond, I am wary to conclude that the Commission intended to convey “prevailing

party” status on a contestant when the Secretary promptly vacates an order or citation before any

petition has been filed and the issues have been joined for litigation. In Black Diamond, unlike

the present case, the Secretary pursed the litigation for a considerable amount of time. After the

mine was inspected, it took five months for the Secretary to file a petition for assessment of civil

penalties and another three months of pre-trial proceedings and discovery before the citations

were finally vacated the day before the scheduled hearing. Black Diamond, supra, at 1191. 

In the case at bar, the Secretary expeditiously vacated the 104(g)(1) Order without any of

the prolonged pre-trial preparation and discovery that took place in Black Diamond. There was

33 FMSHRC Page 2266
4

 As the EAJA is a statute of general application that is not committed to administration

by the Commission or the Secretary, the D.C. Circuit has declined deference to MSHA or the

Commission’s construction of the EAJA’s provisions. Contractor's Sand & Gravel, Inc. v. Fed.

Mine Safety & Health Review Comm'n, 199 F.3d 1335, 1339 (D.C. Cir. 2000). 

little time to discuss the 104(g)(1) Order since the underlying contest proceeding was initiated by

USA Cleaning only a few days after the Order was issued. Once the Notice of Contest and

Motion for Expedited Consideration were served on the Secretary, she promptly assigned the

case to counsel and ultimately vacated the Order within a week. Furthermore, unlike in Black

Diamond, there was never a joinder of the issues for litigation as the Secretary never filed a

petition for assessment of civil penalty or any pleading in opposition to USA Cleaning’s Notice

of Contest. 

In the decade since the Commission issued its Black Diamond decision, the Supreme

Court issued a landmark decision concerning the definition of a “prevailing party” in

Buckhannon Bd. & Care Home, Inc. v. West Virginia Dept. of Health & Human Res., 532 U.S.

598 (2001). Buckhannon represents a major shift in the determination of how “prevailing party”

status is established. Prior to that decision, most circuits applied the “catalyst theory,” which

designated a plaintiff the prevailing party “if it achiev[ed] the desired result because the lawsuit

brought about a voluntary change in the defendant's conduct.” Id. at 601. However, in

Buckhannon, the Court rejected the catalyst theory and found that “prevailing party” is a legal

term of art to denote that a party has been awarded some relief by the court. Id. at 615-16. 

While Buckhannon concerned the question of “prevailing party” status under the Fair Housing

Amendments Act of 1988 (FHAA) and the Americans with Disabilities Act of 1990 (ADA),

courts have consistently applied its rationale in the context of the EAJA. See, e.g.,

Perez-Arellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002); Thomas v. Nat’l Sci. Found., 330

F.3d 486, 492-93 (D.C. Cir. 2003). 

The D.C. Circuit has interpreted Buckhannon as setting forth three criteria for

establishing whether a party has “prevailed” for the purposes of a fee-shifting statute. Turner v.

Nat’l Transp. Safety Bd., 608 F.3d 12, 15 (D.C. Cir. 2010) (citing District of Columbia v. Straus,

590 F.3d 898, 901 (D.C. Cir. 2010)).4 Under this three-part test, a party is classified as having

“prevailed” if: (1) there is a court-ordered change in the legal relationship of the parties; (2) the

judgment is in favor of the party seeking the fees; and (3) the judicial pronouncement is

accompanied by judicial relief. Id. 

The D.C. Circuit most recently applied this test in an analogous case involving an

application for fees and expenses under the EAJA. In Turner v. National Transportation Safety

Board, shortly after two pilots appealed their suspensions by the Federal Aviation

Administration (FAA), the FAA withdrew the complaints before an Administrative Law Judge

could schedule a hearing. Turner, supra, at 12. The court held that where an ALJ dismisses a

complaint at the request of an administrative agency, there is nothing “analogous to judicial

relief.” Id. at 16. The ALJ’s dismissal was deemed to be mere “administrative housekeeping”

and not judicial relief because the FAA unilaterally withdrew the complaint without the ALJ’s

permission. Id. Furthermore, the court concluded that the legal relationship between the parties

was not altered by the case’s dismissal. Id. at 15. The court found that when the ALJ is silent on

33 FMSHRC Page 2267
the subject, the case is understood to have been dismissed without prejudice, thereby returning

the parties to the same legal position as existed prior to the proceedings. Id. In failing to meet

prongs one and three of the court’s three-part test for establishing themselves as “prevailing

parties,” the court ruled that the pilots were not eligible for reimbursement under the EAJA. 

 

The facts in Turner closely mirror those in the case at bar. In both cases, the

administrative agency requested that the ALJ dismiss the case before a hearing could be

scheduled. The court’s reasoning in Turner made clear that, while the pilots did receive a

favorable outcome, the resolution of the case was not enough to warrant their designation as

“prevailing parties” without securing a favorable judgment on the merits or a court-ordered

consent decree. Similarly, I find that the dismissal of the underlying contest proceeding as a

result of MSHA’s vacation of the underlying 104(g)(1) Order in the case at bar did not convey

any judicial relief upon USA Cleaning, nor did it change the legal relationship between USA

Cleaning and the Secretary. 

Within ten days of issuing the 104(g)(1) Order, the Secretary promptly vacated the Order

and ended any adversarial relationship between the parties. No petition or pleading responding

to the Notice of Contest was ever filed by the Secretary. It has long been settled that the

Secretary has the unreviewable discretion to vacate a citation or order. See, e.g., Secretary v.

RBK Constr. Inc., 15 FMSHRC 2099 (1993). Thus, the Order I issued granting the Secretary’s

Motion to Dismiss was simply a procedural formality that, in itself, offered no relief to USA

Cleaning. Furthermore, given that I did not dismiss the underlying case with prejudice, the

Secretary’s vacation of the order did not change the legal relationship between the parties. 

Rather, it restored both parties to the same legal status they held prior to MSHA’s issuance of the

order. See Turner, supra, at 15.

As USA Cleaning did not receive any judicial relief in the underlying proceeding, and

my dismissal did not change the legal relationship between the two parties, I find that it would be

inappropriate to classify USA Cleaning as a prevailing party for purposes of the EAJA. Having

failed to meet the eligibility criteria under the EAJA, USA Cleaning’s Application for Award of

Fees and Expenses is hereby DENIED.

/s/ Thomas P. McCarthy 

Thomas P. McCarthy

 Administrative Law Judge

33 FMSHRC Page 2268
Distribution:

Linda M. Hastings, Esq., Office of the Solicitor, U.S. Department of Labor, 881 Federal Office

Building, 1240 East Ninth Street, Cleveland, OH 44199

Brian Hendrix, Esq., Patton Boggs LLP, 2550 M St., NW, Washington, DC 20037-1350

/tjr

33 FMSHRC Page 2269
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th STREET, SUITE 443

DENVER, CO 80202-2500

303-844-5266/FAX 303-844-5268

September 23, 2011

CONNOLLY-PACIFIC COMPANY, : CONTEST PROCEEDINGS

Contestant :

: Docket No. WEST 2011-1064-RM 

: Order: 8607223; 05/24/11

:

v. : Docket No. WEST 2011-1065-RM

: Citation: 8607224; 05/24/11

:

: Docket No. WEST 2011-1066-RM

SECRETARY OF LABOR, : Citation: 8607225; 05/24/11

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. WEST 2011-1067-RM

Respondent : Citation: 8607226; 05/24/11

:

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. WEST 2011-1238

Petitioner : A.C. No. 04-00081-260016

:

v. :

:

CONNOLLY-PACIFIC COMPANY : Mine: Pebbly Beach Quarry

Respondent : Mine ID: 04-00081

DECISION

Appearances: Susan Seletsky, Office of the Solicitor, U.S. Department of Labor, Los Angeles,

California for the Secretary,

Adele L. Abrams, Law Office of Adele L. Abrams, Beltsville, Maryland for the

Respondent.

Before: Judge Miller

This case is before me on a notice of contest based upon four enforcement documents

filed by the Secretary of Labor, acting through the Mine Safety and Health Administration,

against Connolly-Pacific Company at its Pebbly Beach Quarry, pursuant to sections 105 and 110

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”

or “Act”). The case includes four separate docket numbers that involve three 104(a) citations

and one 107(a) imminent danger withdrawal order.

33 FMSHRC Page 2270
1 The Secretary’s exhibits will be noted as “Resp. Ex.” while Connolly-Pacific’s exhibits

will be noted as “Cont. Ex.”

These dockets were heard on an expedited basis after Connolly-Pacific timely filed

Notices of Contest for the citations and order and moved to consolidate and expedite

proceedings. Connolly-Pacific stated that the highwall was not a safety hazard and argued that a

mining/mine plan is not required for surface aggregate operations. Further, Connolly-Pacific

argued that the section 107(a) imminent danger order would prevent them from meeting a

pre-existing production contract. The Secretary opposed Connolly-Pacific’s motion to expedite,

stating that she did not expect the Contestant to prevail and Connolly-Pacific would ultimately

have to develop a prudent mining plan. The Court granted the Contestant’s Motion to

Consolidate and Expedite Proceedings and the hearing of this matter commenced on July 18,

2011 in Long Beach, California.

I. STATEMENT OF FACTS

Connolly-Pacific Company (“Connolly-Pacific”) operates a stone quarry, the Pebbly

Beach Quarry (the “quarry” or “mine”), on Catalina Island, California. Resp. Ex. 7 p. 3.1

Connolly-Pacific has owned and operated the quarry since as early as the 1950s. Id. The quarry

is subject to regular inspections by the Secretary’s Mine Safety and Health Administration

(“MSHA”) pursuant to section 103(a) of the Act. 30 U.S.C. § 813(a). The parties stipulated that

Connolly-Pacific is the operator of the mine, that its operations affect interstate commerce, and

that it is subject to the jurisdiction of the Mine Act. (Tr. Vol. II: 5). The parties further agreed

that, although this is a notice of contest case, the penalty case may be consolidated and decided

with the contest.

The Pebbly Beach Quarry produces greywacke landscape and armor stone in varying

sizes ranging up to 30 tons. Cont. Ex. E-1, p. 1; (Tr. Vol. I: 230). The rock is primarily brought

down by blasting. Connolly-Pacific uses a number of blasting methods, including the “coyote”

blasting method, to generate raw stone at the quarry. Cont. Ex. E-1, p. 1; (Tr. Vol. I: 36). The

last major blasting event in the area cited by MSHA Inspector Hilde was a “coyote” blast that

occurred in 2004. (Tr. Vol. I: 36). Since 2004 there have been additional blasts of less intensity,

including “lifter blasts,” “down blasts,” and “secondary blasts.” (Tr. Vol. I: 36, 165). Due to the

height of the highwall, Connolly-Pacific does not, and cannot, scale the highwall to control loose

material and, instead, relies on a few blasts, gravity, and rainfall to bring down debris and loose

boulders. (Tr. Vol. I: 33, 34, 49, 72, 84). The Pebbly Beach Quarry produces three types of raw

product: “A” rock, “B” rock and Quarry Run. (Tr. Vol. I: 229). “A” rock comprises of armor

rock between 4 and 30 tons; “B” rock is between 1⁄4 to 4 tons; and Quarry Run is everything

smaller than “B” rock. (Tr. Vol. I: 229). The large “A” rock is greywacke, which is the most

valuable and sold to ports along the coast. (Tr. Vol. I: 235; Tr. Vol. II: 106). The stone is

loaded on a barge at a loading dock at the foot of the quarry for transport to its final location. 

Resp. Ex. 7 p. 3.

33 FMSHRC Page 2271
On May 24, 2011, MSHA Inspector Chad Hilde visited the Pebbly Beach Quarry and

issued section 104(a) Citation Nos. 8607224, 8607225, and 8607226. (Tr. Vol. I: 16). On the

same day, Hilde issued section 107(a) imminent danger Order No. 8607223 based upon the

conditions noted in the three 104(a) citations. He instructed Connolly-Pacific to cease quarrying

operations in the described area. MSHA Engineer Steven Vamossy accompanied Inspector

Hilde on May 24, 2011. Vamossy photographed and recorded observations of the highwall

conditions and was present during conversations with Connolly-Pacific employees. (Tr. Vol. I:

17-18, 158, 160). Representatives of the operator also accompanied the inspection team. The

citations, as amended, allege that two 300 foot tall sections of the highwall were not properly

maintained, a hazard existed which had not been corrected, and the areas were not barricaded as

required by 30 C.F.R. §§ 56.3130, 56.3131, and 56.3200 respectively. At the 480 south section

of the quarry, the bottom seventy feet, known as the talus pile, was at an angle of repose of about

45 degrees. (Tr. Vol. I: 21-22, 30-31, 65, 221; Tr. Vol. II: 18). At the 480 north section of the

quarry, there was no talus pile, however, tire tracks at the face demonstrated that travel under

that highwall continued to occur in that area. (Tr. Vol. I: 23). The highwall rises up to 300 feet

in the 480 north, and more than 200 feet above the talus pile in the 480 south. While the two

cited areas were not bermed, a portion of the mine between the north and south areas was not

being mined at the time and had been bermed to prevent access to persons and equipment. (Tr.

Vol. I: 20, 29, 31).

Hilde and Vamossy agree that they observed loose material and cracked rock on the

highwall above both the working sections, the 480 north and the 480 south. (Tr. Vol. I: 21, 25,

66, 166, 170). Hilde observed a loader mucking the talus pile in the 480 south area. (Tr. Vol. I:

19, 21, 30). The photo, Resp. Ex. 15, DOL 070, shows the 480 south area with a cone shaped

pile of material approximately 70 feet high, described as talus pile, which consisted of material

that has rolled from the highwall as a result of a blast or a fall. (Tr. Vol. I: 22). The photo

further illustrates the condition of the talus pile and highwall in the 480 south area, and the

position of the loader beneath, as observed by Hilde and Vamossy. (Tr. Vol. I: 21, 22, 24). A

second photo, Resp. Ex. 15, DOL 072, clearly shows cracks in the highwall above the 480 south

and pieces of rock that overhang the area in which the loader was working. (Tr. Vol I: 170). 

After observing the 480 south, Hilde and Vamossy walked northward, along the 480, to the north

area, passing by the bermed area en route. (Tr. Vol. I: 23). One photo, Resp. Ex. 14, DOL 067,

is a photo of tire tracks that lead up to the toe of the highwall at the 480 north, and indicate that

the loader had cleaned up to the face. (Tr. Vol. I: 23). Photo, Resp. Ex. 14, DOL 68, shows the

same area, but taken from a further distance. Hilde testified, with the use of the photograph, that

he could see rock overhanging at the top and loose pieces of rock in several locations on the

wall, and he knew that the wall had not been scaled. (Tr. Vol. I: 24). The photographs in Resp.

Exs. 14 and 15 clearly show cracks and loose rock and material on the highwall above the

working area, as observed and testified to by Hilde and Vamossy.

During the course of the inspection, Hilde and Vamossy questioned the mine employees

and mine management about maintaining the highwall. (Tr. Vol. I: 22, 36, 59). Neither Hilde

nor Vamossy had observed a highwall of this height and it was clear that, given the height, the

highwall could not be scaled. (Tr. Vol. I: 34, 49, 72, 84, 166). Further, the two cited areas were

not benched or bermed. (Tr. Vol. I: 33). 

33 FMSHRC Page 2272
Connolly-Pacific explained the method of mining used at the quarry to include the

mucking out of material from the talus pile until the mine feels it is no longer safe to work in that

area, at which time they move to a different location. (Tr. Vol. I: 36). The areas are mucked as

material falls and joins the talus pile. (Tr. Vol. I: 36). The area is not benched and, instead, the

mine uses weekly examinations, daily examinations, spotters and, to a limited extent, blasting to

control the highwall. (Tr. Vol. I: 33, 37). Hilde was told that the last coyote blast was done in

2004. (Tr. Vol. I: 36). That blast brought down tons of material that continues to be mucked. 

(Tr. Vol. I: 233). The mine conducts one other type of blasting that relates to highwall control,

lifter blasting. (Tr. Vol. I: 225). A lifter blast can help with ground control but its primary

purpose is production. (Tr. Vol. I: 234). No lifter blasts were conducted at the 480 south in

2011, but two or three blasts were conducted in that area prior to August 1, 2010. (Tr. Vol. I:

250-251). One or two lifter blasts were conducted at the 480 north in 2011 and the talus was

mucked back to the toe of the highwall. The mine had completed the work at the 480 north and

had planned to berm the area to keep out men and machines, but had not had time to do so prior

to the visit by Hilde and Vamossy. (Tr. Vol. II: 21-22). When asked, the mine could not locate

any engineering or geologic studies for either area, nor could it produce any tools to measure the

conditions. (Tr. Vol. I: 37-38; Tr. Vol. II: 40-41). The mine does have aerial photos taken,

currently once a year, to view the quarry and to, in part, help determine the condition of the

highwall. (Tr. Vol. I: 39, 57, 87, 238-238). The mine had no plan for control of the highwall

other than that which was already in place. (Tr. Vol. I: 44, 47). It did not intend to begin scaling

or benching in any area cited.

Connolly-Pacific has operated the Pebbly Beach Quarry for decades. (Tr. Vol. I: 227). 

The company has mined tons of stone and rock and has had a steady, reliable work force. (Tr.

Vol. I: 138). The mine employs 22 miners, many of whom have, or have had, a father or other

family who works, or worked, at the mine. (Tr. Vol. I: 123, 138, 245; Tr. Vol. II: 44, 65). The

employees are loyal to the company and have never raised a complaint about the safety of the

highwall. (Tr. Vol. I: 246-247; Tr. Vol. II: 25). Of the witnesses who testified on behalf of the

mine, two were not everyday workers at the mine, but were present at the mine once a week or

less, while the remaining witnesses work daily at the mine. The three who work daily at the

mine have not worked at any other quarry or mining operation in their career. The mine, located

on Catalina Island, is subject to earthquakes and small tremors. (Tr. Vol. II: 95, 113-114). The

mine has had only one accident related to a fall of rock in its history. Resp. Ex. 17.

The Pebbly Beach Quarry utilizes supervisor observation and spotters to watch the

highwall for any problems. (Tr. Vol. I: 128, 131, 147). On a weekly basis, one of the managers

travels to the top of the highwall to look for anything unusual. (Tr. Vol. I: 111-112, 124). Each

day, management looks at the highwall from the lower levels to determine if any changes have

occurred. (Tr. Vol. I: 124). Machado, one of the managers at the mine, is assigned to look at the

highwall each day before he assigns the day’s work. (Tr. Vol. I: 90). Machado keeps notes of

his weekly and daily examinations. (Tr. Vol. I: 92). Machado’s notes for 1/7/11, Resp. Ex. 19,

indicate that it was too muddy to travel to the top of the highwall, that the mine had received rain

for two weeks, that some rocks had rolled or fallen off the highwall, and that he was continuing

to watch due to the rain. (Tr. Vol. I: 113-114). His notes further reflect that, on 1/15/11, he was

watching a crack that had developed and he noted that dirt had moved due to recent rain. Resp.

Ex. 19 ; (Tr. Vol. I: 115). Machado explained that he had been watching a problem spot high up

33 FMSHRC Page 2273
above the 480 south, and his notes indicate that he observed cracks in the rock that were growing

larger. Resp. Ex. 19; (Tr. Vol. I: 103). After a series of rains, the rock came down during the

night on May 5, 2011, and Machado noted its movement. Resp. Ex. 19; (Tr. Vol. I: 96, 104). 

Machado stated that he watches the movement on the highwall and, normally, he waits a few

days after a fall to see if anything else comes down before assigning work in the area. (Tr. Vol.

I: 114-115, 144). However, on May 5, after the fall, he assigned miners to work in the 480 south

area because, according to his testimony, it appeared safe to go in. (Tr. Vol. I: 97, 115). The

notes of Machado indicate that slight rain does not get in the way of production. Resp. Exs. 19

and 20; (Tr. Vol. I: 144). However, when there is heavy rain, the roads become too muddy for

equipment to pass and, consequently, the mine is closed. (Tr. Vol. II: 33). 

According to mine witnesses, if a work area appears safe, they will work it, but pull back

if any miner raises a safety issue. (Tr. Vol. I: 126; Tr. Vol. II: 19). The miner witnesses agree

that they have not seen any rock “free fall” from the top of the highwall while working. (Tr.

Vol. I: 122, 125; Tr. Vol. II: 46, 68). Instead, rocks and material slide or roll down, often

landing in the talus pile or rolling off that pile. (Tr. Vol. I: 125). The notes of Machado show

that mucking was ongoing at both the 480 north and south up to the time of Hilde’s inspection. 

Ex. 19. 

Aside from blasting, work is assigned primarily at the talus pile, which is composed of

material that is blasted or has slid off of the wall due to weather or other conditions. The loader

can load most rock that is contained in the pile, but if the rock is too large, it is pushed aside and

later broken up by a secondary blast. (Tr. Vol. I: 100, 148, 231; Tr. Vol. II: 52-53). If an area is

not safe to mine, such as the area between the 480 south and 480 north, the mine constructs a

berm, often with large rock, to prevent access. (Tr. Vol. I: 126, 140, 141-142, 147, 237; Tr. Vol.

II: 20).

Once the manager has observed the highwall shortly after his arrival, he assigns a crew to

work the talus piles to load the rock onto waiting trucks. (Tr. Vol. II: 66). A trained spotter is

assigned to the crew and each crew member is issued a radio for communication during the day. 

(Tr. Vol. I: 129-130, Tr. Vol. II: 15, 45, 66). The spotter is assigned for 8 hours, but is relieved

for bathroom breaks if he so requests. (Tr. Vol. I: 134-135). The spotter watches the talus pile

and the highwall and avoids the heavy equipment working in the area while he is on foot. If the

spotter observes any rock or dirt come off the wall, he notifies the other crew members who pull

back and look at the area noted and together decide if they should continue with the load and

haul process. (Tr. Vol. I: 126; Tr. Vol. II: 15). If the miners believe it is not safe to work in any

area, they may tell the others and together determine if work should continue. (Tr. Vol. I: 126,

129; Tr. Vol. II: 26, 32). Few complaints, if any, have been made about the safety of the

highwall. (Tr. Vol. I: 126, 246-247; Tr. Vol. II: 26). 

The worker exposed daily to the fall of rock is the operator of the loader, who mucks the

talus pile back to the toe of the highwall. (Tr. Vol. II: 46, 62). The loader cab is approximately

17.5 feet off the ground and has rollover protection and a wire screen protecting the cab. (Tr.

Vol. II: 34, 40, 48, 50, 132). In the event a spotter notices a suspicious area or sees rock rolling,

he warns the loader operator, who then, in the mine’s view, has time to move out of harms way. 

(Tr. Vol. I: 145). The distance the loader is operating from the toe of the highwall and the

33 FMSHRC Page 2274
amount of material in the bucket, determine how quickly the loader can escape. As a result, the

level of danger or exposure to falling and rolling rock increases as the loader works ever closer

to the toe of the wall where it necessarily takes longer to move out of harms way.

The other activity that occurs at the highwall and exposes miners to fall, is blasting. (Tr.

Vol. I: 130). There are several kinds of blasts, mostly for production purposes. (Tr. Vol. I: 229). 

The blaster must approach the highwall on foot with helpers in order to set charges for a blast. 

(Tr. Vol. I: 116; Tr. Vol. II: 38). A spotter is present during this process. The blaster drills the

wall, sets the charges and controls the blast. Once the area is blasted, it is left for 24 hours to

determine if any other material will fall. (Tr. Vol. II: 69, 94). Resp. Ex. 21, DOL 181, 182, 183

are a good depiction of the location of the blasters and helpers during the process. (Tr. Vol. I:

116). The crew is next to the highwall during the setting of the charges and, because radio

frequencies interfere with explosives, the spotter is armed with an air horn to warn of any

dangerous conditions above. (Tr. Vol. I: 146, 151; Tr. Vol. II: 80-81). The company’s blaster

explained that coyote blasting has not been done for more than seven years, but he has performed

“lifter” blasts, “down” and “secondary” blasts since then. (Tr. Vol. II: 72-73). The lifter blasts

aid in ground control as well as production, while the other blasts are generally for production

purposes. (Tr. Vol. I: 149, 234; Tr. Vol. II: 72-73). A record is kept of all blasts. (Tr. Vol. I:

250; Tr. Vol. II: 75); Resp. Ex. 18.

In general, the mine has operated with the use of spotters for many years with little

problem. The methods of controlling the highwall include some limited blasting, and allowing

the material to fall under natural conditions. The photographs and checks by management are

used by Connolly-Pacific to observe changes in the highwall and predict the fall of material. 

Benches and scaling are not now, and have not or rarely been, used in this area of the mine. The

highwall has been developed to such a height that it is difficult, if not impossible to scale.

II. DISCUSSION AND CONCLUSIONS OF LAW

In essence, Connolly-Pacific is charged with not maintaining the highwall in a stable

condition. The stability of a highwall depends on a number of variables, including its height, the

geology, and the angle of the wall. In addition to the blasting and occasional photographs

utilized by Connolly, mines normally use benching and scaling to control a highwall. Generally,

benches are placed above the working area to “catch” and help control rock or material that is

rolling or falling from the highwall. Scaling is used to remove loose or hanging rock and

material before it falls. This quarry uses neither scaling nor benching to control the fall of

material from the highwall. Blasting is another method often used to control a highwall by

bringing down loose material before it falls. All mines, no matter which method or methods are

used to control the highwall, must always be vigilant in watching the movement and the changes

in the highwall.

The Connolly-Pacific highwall is roughly 300 feet high with no bench below. While in

one cited area there was a talus pile, approximately 70 feet high, there was no talus pile in the

other cited working area. The talus pile, to some extent, serves to impede the travel of rock and

debris as the material falls or rolls off of the wall. As the talus pile is mucked, the loader is

33 FMSHRC Page 2275
forced to move closer and closer to the highwall. As a result, the buffer provided by the talus

pile shrinks, thereby increasing the danger. All parties agree that the talus pile consists of loose

material which can move and roll, however, such movements and rolling are generally

predictable. The highwall, on the other hand, is not predictable, in the sense that one will not

know when material may fall. The loose and cracked rocks are most likely to roll or fall from

the wall after a “secondary” event occurs. The operator’s expert, Johnson, explained that a

secondary event may include an earthquake or tremor, rain, water run-off, or other weather

event. While one may predict that, after a number of days of rain, material will slough off of the

highwall, it is uncertain when that will occur and to what degree. Johnson testified that rain

could “cause[] failures to occur days or even weeks after the rainfall.” (Tr. Vol. II: 116). In

other words, rain on a certain day does not necessarily indicate that material will slide or fall

within a set time period. The same is true of sloughing caused by other secondary events.

It is the position of the Connolly-Pacific that, prior to the issuance of the citations

contested herein, it had not been provided with any notice that the manner in which the mine

controlled the highwall was not in compliance with the requirements of section 56.3130 and the

related highwall standards. Connolly-Pacific argues that the conditions had never before been

cited during any inspection. Hilde inspected the mine, including the highwall, in 2008. At that

time he had concerns about the highwall and its safety. According to the mine, following the

inspection in 2008, management had a telephone conversation with Hilde and his supervisor and,

subsequently, agreed to provide berms in certain areas of the mine to alleviate Hilde’s concerns. 

No other inspector had mentioned any problem with the highwall and the mine has received no

citations for failing to control the highwall.

The Contestant’s assertion that they have been deprived of fair notice because they have

never been cited for the highwall, or specifically notified of the application of the standards to

the highwall, is not persuasive. An operator is deprived of fair notice of the applicability of a

standard when it is “so incomplete, vague, indefinite or uncertain that [persons] of common

intelligence must necessarily guess at its meaning and differ as to its application.” Ideal Cement

Co., 12 FMSHRC 2409, 2416 (Nov. 1990) (quoting Alabama By-Products Corp., 4 FMSHRC

2128, 2129 (Dec. 1982)) (alteration in original). Explicit notice to the operator is not required. 

Put another way, “[w]here the language of a regulatory provision is clear, the terms of that

provision must be enforced as they are written unless the regulator clearly intended the words to

have a different meaning or unless such a meaning would lead to absurd results,” Lode Star

Energy Inc., 24 FMSHRC 689, 692 (July 2002) (citing Dyer v. United States, 832 F. 2d 1062

(9th Cir. 1987)). The standard for maintaining the stability and safety of the highwall is

sufficiently clear. The standard is not vague or incomplete. Section 56.3130 is a

performance-oriented standard “broad enough to apply to the wide variety of conditions

encountered.” Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 375 (Mar. 1993) (quoting 51

Fed. Reg. 36193 (Oct. 8, 1986)).

Next, there is no evidence to demonstrate that the conditions cited by Hilde during the

2011 inspection were identical to the conditions observed in 2008 or on any other inspection. In

fact, the photos provided by the mine demonstrate that the mine has changed. Specifically, the

talus piles that were in place in 2008 are not the same as those in 2011. Finally, I find that a

reasonably prudent person familiar with the mining industry would recognize the requirements

33 FMSHRC Page 2276
of the standard. As the Commission explained in Lodestar Energy, Inc., 24 FMSHRC 689, 694

(July 2002): 

The appropriate test for notice 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.” Ideal Cement Co., 12

FMSHRC 2409, 2416 (Nov. 1990).

In Phelps Dodge Tyrone, Inc., 30 FMSHRC 646, 656, (Aug. 2008), the Commission,

citing earlier precedent, reiterated the “reasonably prudent person” standard: 

[T]he alleged 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); see also Asarco, Inc., 14

FMSHRC 941, 948 (June 1992). 

As the Commission stated in Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990),

“in interpreting and applying broadly worded standards, the appropriate test is not whether the

operator had explicit prior notice of a specific prohibition or requirement,” but whether a

reasonably prudent person would have ascertained the specific prohibition of the standard and

concluded that a hazard existed. The reasonably prudent person is based on an “objective

standard.” U.S. Steel Corp., 5 FMSHRC 3, 5 (Jan. 1983).

In the instant case, the text of the regulation, along with the guidance in the MSHA

Program Policy Manual (“PPM”), further lead to the conclusion that a reasonably prudent person

would have been aware of the requirements of the cited standards. I take official notice of the

MSHA PPM that specifically suggests benches as a way to effectively control the highwall along

with scaling. In addition, I find that, given the obviousness of the conditions at the mine,

including the extreme height of the highwall, the loose and cracked rock, and the lack of

benches, a person familiar with mining would recognize the hazard and recognize that corrective

action must be taken.

Having found that the mine’s argument regarding fair notice is not persuasive, I move to

the individual citations. Each citation is based upon the condition of the highwall as observed by

Hilde and Vamossy. The Mine Act requires the highwall to be maintained in a stable condition. 

Many experts, including the expert presented by Connolly-Pacific, recommend that benches and

scaling, as well as limited blasting, be used to maintain the stability of the highwall. 

Photographs, watching the highwall, and tracking the weather are helpful in anticipating the fall

33 FMSHRC Page 2277
of rock and material, but they do not prevent or actively control such falls. Further, having

spotters on the ground observing the highwall while miners work below does not maintain the

highwall’s stability and, instead, only mitigates against the damage a fall may create. For the

reasons set forth herein, I find that Connolly-Pacific failed to adequately maintain the highwall

and slope stability as required by the Mine Act and the Secretary’s regulations

a. Docket No. WEST 2011-1065-RM - Citation No. 8607224

On May 24, 2011 Inspector Hilde issued Citation No. 8607224 at the Pebbly Beach

Quarry for an alleged violation of 30 C.F.R. § 56.3130. The citation, as amended, alleges, in

pertinent part, the following: 

At the south end of the 480 level, a Cat 992 D Loader, Co # 5, was

loading under an approximate three hundred foot highwall. The

lower approximate seventy feet containing material that had slid or

raveled off the highwall, was at angle of repose of approximately

45 degrees. The slope of the remaining approximate two hundred

thirty feet of wall ranged from seventy two to ninety degrees. The

top of the wall had loose and unconsolidated materials and

boulders. The loader was cleaning material that had raveled and

slid off the wall. There was also recent activity at the north end of

the 480 level where material had been cleaned up under

overhanging material. The mining method involved assigning

employees to pick up material that had slid off the highwall. The

operator took no action to determine or maintain the stability of the

highwall after material had slid before assigning employees to

work under it.

Inspector Hilde found that a fatal injury was reasonably likely to occur, that one person was

affected, that the violation was significant and substantial, and that the violation was the result of

moderate negligence.

1. The Violation

Chad Hilde has worked as an MSHA mine inspector for nearly ten years and worked in

the mining industry prior to that. He has taken college courses, including courses in engineering

and geology. Hilde cited a violation of 30 C.F.R. § 56.3130, which requires the following: 

Mining methods shall be used that will maintain wall, bank, and

slope stability in places where persons work or travel in

performing their assigned tasks. When benching is necessary, the

width and height shall be based on the type of equipment used for

cleaning of benches or for scaling of walls, banks, and slopes.

The Commission has stated that section 56.3130 is a “performance-oriented” standard “broad

enough to apply to the wide variety of conditions encountered.” Cyprus Tonopah Mining Corp.,

33 FMSHRC Page 2278
15 FMSHRC 367, 375 (Mar. 1993) (quoting 51 Fed. Reg. 36193 (Oct. 8, 1986)). MSHA details

the requirements of section 56.3130 in its Program Policy Manual, which states the following: 

Consistent with . . . [Section 56.3130], MSHA requires that a

bench located immediately above the area where miners work or

travel be maintained in a condition adequate to retain material that

may slide, ravel, or slough onto the bench from the wall, bank, or

slope.

IV MSHA, U.S. Dep’t of Labor, Program Policy Manual, Part 56, at 10 (2010) (“PPM”). 

Neither 30 C.F.R. § 56.3130, nor the PPM, should be interpreted as mandating a

benching system in all areas of all highwalls. Malvern Minerals Co., 11 FMSHRC 2382,

2386-87 (Nov. 1989) (ALJ) (stating that section 56.3130 “requires benching . . . only when

‘necessary’”). However, it is clear that operators must employ excavation/mining methods that

not only protect workers from falling or sliding rock, but also “maintain wall, bank, and slope

stability.” 30 C.F.R. § 56.3130. Commission judges have previously relied upon the cited

section of the PPM in upholding section 56.3130 citations when operators failed to provide an

adequate protective bench at the toe of a highwall. See e.g., Summit Inc., 19 FMSHRC 1326,

1339 (July 1997) (ALJ). While Pebbly Beach Quarry argues that photographs, limited blasting,

and the watchful eyes of its supervisors and spotters maintain the highwall, the mine,

nevertheless, does not employ scaling or benches as a method of control. I agree that there is no

requirement to engage in the use of benches to protect the miners below the highwall from

falling material, but if benches are not used, the mine must employ some alternative effective

methods to maintain stability of the wall.

Many of the photos taken by Hilde and Vamossy on the day of citation demonstrate the

condition of the highwall. For example, the photo, Resp. Ex. 15, DOL 070, clearly depicts the

Cat 992 Loader referenced in the citation positioned at the base of the highwall. The highwall is

approximately three hundred feet high directly above the loader and increases in height to the

right side of the picture frame. The height alone is unusual in the mining industry and the wall is

nearly vertical. A large pile of loose boulders is visible on the pit floor adjacent to the 992

loader. Resp. Ex. 15, DOL 070. Rocks that are overhanging and cracked on the wall, as well as

loose material on the highwall, are evident in the photos. Resp. Ex. 15, DOL 067, 068, 070, 072. 

No benches or other evidence of highwall maintenance are apparent in the photos.

In addition to the photographs contained in Resp. Exs. 14 and 15, I have relied upon the

expert testimony of both parties in considering this citation. Both parties agree that there is little

likelihood of a massive highwall failure. Moreover, both experts agree that material sloughs off

of the talus pile as it is being mucked. Such sloughing of the talus pile is generally predictable

and mucking of the pile is an accepted method of moving the material to a load out position. 

The citation, however, is directed at the highwall as it soars hundreds of feet above the talus pile

in one instance, and above the working area in another 

Steven Vamossy presented expert testimony on behalf of the Secretary regarding the

stability and alleged potential hazards present at the Pebbly Beach Quarry. Vamossy is a

33 FMSHRC Page 2279
registered professional civil engineer and has worked in MSHA’s Technical Support division for

ten years. Vamossy accompanied Inspector Hilde on the day the May 24th citations were issued. 

It appears that, at least in part, Hilde relied upon Vamossy’s observations and evaluation of the

highwall conditions in his decision to issue all three 104(a) citations and the subsequent 107(a)

withdrawal order. In his final report, Vamossy described two general types of hazards associated

with highwalls: (1) mass instability, and (2) individual rock fall hazards. Resp. Ex. 7. Vamossy

stated that, due to the orientation of the rock layers present at this area of the Pebbly Beach

Quarry, the possibility of massive rock movement was unlikely. However, Vamossy also stated

that there were some joints at the north end of the quarry wall which indicated a potential for

sliding or toppling of smaller slabs of rocks.

Vamossy testified that a falling rock hazard was present at the pit floor. He noted that

Connolly-Pacific had not established horizontal catch benches consistent with MSHA’s Program

Policy Manual section addressing section 56.3130, and had allowed the front end loader to

operate near the toe of the highwall, which contained loose and overhanging rock. Vamossy

concluded that Connolly-Pacific should: (1) incorporate benching as part of their mining plan;

(2) extend the rock catchment berm to protect haul road traffic; and (3) periodically monitor the

tension crack located at the inactive south end of the quarry. Id. Vamossy was able to point out,

through the use of photographs, a large section of rock on the north 480 highwall that had fallen

and rolled down the wall after a series of rainfalls. This same area had been identified and was

being watched by Machado, and clearly came down during the night of May 5, 2011.

Jeffrey Johnson presented expert testimony for Connolly-Pacific. Johnson has a PhD in

engineering from the University of California and is a certified by the State of California as an

engineering geologist. Johnson’s experience has been primarily in construction and earthquake

preparedness. Johnson’s report on the Pebbly Beach Quarry conditions was based upon a

number of visits to the quarry by him and his assistants during June 2011, collections of rock

samples, the contested MSHA citations, aerial photographs, and discussions with

Connolly-Pacific management.

Johnson testified that quarry observations and aerial photographs indicated that the rock

formations present at the operative area of the quarry were not subject to massive slope failure. 

He testified to the manageable nature of the blast talus slope present at the quarry. Johnson

stated that, as mucking operations proceed at the toe of the talus pile, the slope will fail,

predictably, in thin slabs as material is removed from the toe. According to Johnson, removal of

the blast talus pile does not affect the stability of the steep areas above the talus pile. Johnson

also stated that talus slopes form a buffer that will slow rock fall fragments from above. 

Moreover, by slowing any rock fall fragments, the talus pile provides time for equipment

operators to adjust their position in the event of a rock fall. However, Johnson noted that

working at the base of a highwall that is susceptible to falls and topples is problematic if a

significant accumulation of talus does not exist to serve as a buffer. In that instance, Johnson

recommended benching and scaling to control the highwall. Cont. Ex. E-1, p. 9. The existence

of the talus pile is crucial to Johnson’s testimony, yet there was no talus pile at the 480 north

area. (Tr. Vol. II: 143, 146).

33 FMSHRC Page 2280
As Johnson explained, the primary difference between his report and conclusions reached

by Vamossy is a disagreement as to when the highwall becomes a hazard. Vamossy asserted that

the highwall, without benching or scaling to prevent or control any fall of material, is a hazard in

its present condition. Johnson, on the other hand, opined that there was no hazard, and a hazard

only comes into play when a secondary force, such as an earthquake or rain, is added into the

equation. There is no question that a secondary force such as an earthquake, weather, or other

force, will affect the slope and cause it to fall. Without the secondary force, in Johnson’s view,

there is no hazard. The Secretary’s position is that the highwall must be controlled both in

anticipation of the secondary event and after the secondary event. Johnson believes that the

secondary force is predictable and the spotters and the talus pile serve to control any potential

damage from those forces. Johnson explained that, once there is the presence of the secondary

force, like an earthquake or rain, the mine has time to respond to that secondary force. 

According to the mine, the supervisor and spotters would be aware of the secondary event and,

when rock or dirt begins to come down, they will remove the miners from the affected area. 

Hilde and Vamossy disagree with the mine’s position, and the Secretary argues that the highwall

must be controlled prior to any fall that the spotters may observe.

I credit the testimony of inspector Hilde and Vamossy in evaluating the citations. I find

the Secretary’s witnesses to be more convincing, reliable and objective. I find Vamossy’s

conclusions regarding the condition of the highwall to be consistent with the photographs and the

general tenor of the testimony of all witnesses. Vamossy examined the area in order to gather

enough evidence to reach his conclusion. While Johnson and his team also viewed the area,

Vamossy did it with an eye to mine safety, unlike the engineers for the operator who have no

experience in the mining industry.

After considering all witness testimony, photos and exhibits of quarry conditions, and

expert reports detailing the Pebbly Beach Quarry, I conclude that the Secretary has demonstrated

that a violation of 30 C.F.R. § 56.3130 existed at the quarry on May 24, 2011. I credit Inspector

Hilde’s testimony that loader tracks were present at the base of the north end of the 480 level,

indicating operations beneath overhanging material where there was neither a protective catch

bench or buffer talus slope to stop or slow any falling material. There is no dispute that the

loader was working on the talus pile in the 480 south area. Therefore, the areas cited by Hilde

are areas where miners work or travel. I do note that the design of the Cat 992 loader operating

at the time of the citation may offer some protection from smaller falling rock. However, a

sizeable rock or boulder falling from a height of greater than one hundred feet could certainly

cause a fatal injury to an equipment operator, even if located within a protective cab. Further,

the absence of a berm or warning signs at this area allowed quarry employees to enter the north

end of the quarry on foot where overhanging material was present.

Connolly-Pacific has presented testimony that operating at the toe of the talus slope is

consistent with prudent mining methods. While I accept Connolly-Pacific’s position that the

talus slope itself is a manageable area, I do not accept the proposition that continued mucking

operations, without the creation of protective catch benches, scaling, or other recognized controls

or maintenance of the highwall, is acceptable. If mucking operations continue without

alteration, the toe of the talus slope will move closer and closer to the highwall, and loading

operations will, by necessity, eventually occur at the base of the highwall without any protection. 

33 FMSHRC Page 2281
Based on the lack of a talus pile at the 480 north, the mine apparently mucked all the way to the

base of the highwall in that section prior to the inspection and was working on the other section,

doing the same.

It is clear that the mine keeps an eye on the highwall through occasional or yearly

photographs, examinations by management, and observation by spotters. While the mine

watches the wall, they do not prevent anything from coming down unexpectedly and, hence, do

not control or maintain the wall. Control at highwalls is historically done through benching and

scaling, neither of which presently occurs in this area of this mine. Further, the mine has worked

the area so that the high wall has reached an incredible height. I take notice of a number of

MSHA and NIOSH publications that describe highwall stability and generally refer to a wall that

is up to 100 feet high as the outer limit of acceptable height. “Good basic design is essential to

highwall safety. The height should be limited for stability and to allow scaling.” Christopher

Mark Ph.D. & Anthony T. Iannacchione Ph.D., Ground Control Issues for Safety Professionals,

in MINE HEALTH AND SAFETY MANAGEMENT 365 (Michael Karmis ed., 2001). The highwall at

Pebbly Beach is approximately 300 feet tall, has no benches and, due to its unusual height, the

mine has eliminated the possibility of scaling. Mining publications agree that “[r]ock faces

should be monitored frequently to check for loose rocks,” such as is done at Pebbly Quarry, but

all industry material goes on to recommend that “scaling should be conducted as needed.” Id.

Connolly-Pacific has not presented evidence that contradicts the specific conditions noted

at the quarry and described by Hilde and Vamossy in their testimony. Hilde and Vamossy

credibly testified as to the conditions observed and the complete lack of mining methods that

were being used to maintain the stability of the wall, bank, and slope. While limited blasting is a

recognized method of controlling stability, given the conditions found by the Secretary, blasting

is not enough in this instance. While photographs, management observation, and spotters are

useful tools, again, they do not maintain the stability of the highwall. For these reasons, I find

that the Pebbly Beach Quarry violated the requirements of 30 C.F.R. § 56.3130 at the 480

section of the quarry and uphold the citation.

2. Significant and Substantial

A significant and substantial (“S&S”) violation is described in the Act as a violation “of

such nature as could significantly and substantially contribute to the cause and effect of a coal or

other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). 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 Commission

has explained that: 

[i]n 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

33 FMSHRC Page 2282
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. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99,

103-04 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving

Mathies criteria).

I have already found that there is a violation of the mandatory safety standard; 30 C.F.R.

§ 56.3130, as alleged by the Secretary. Second, I find that a discrete safety hazard existed as a

result of the violations, that is, the danger of rock of various sizes falling or rolling from a height

of several hundred feet and striking a loader operator and or his equipment, or striking a blaster

or other person standing under the highwall. Third, the hazard described, that of a rock or

boulder striking equipment or an employee from a height of several hundred feet, will result in

an injury and, fourth, that injury will be serious, or even fatal. 

The difficulty with finding a violation S&S normally comes with the third element of the

Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the

Commission provided additional guidance: 

We have explained further that the third element of the Mathies

formula “requires that the Secretary establish a reasonable

likelihood that the hazard contributed to will result in an event in

which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC

1834, 1836 (August 1984). We have emphasized that, in

accordance with the language of section 104(d)(1), it is the

contribution of a violation to the cause and effect of a hazard that

must be significant and substantial. U.S. Steel Mining Co., Inc., 6

FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc.,

6 FMSHRC 1573, 1574-75 (July 1984).

This evaluation is 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 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 

6 FMSHRC 1573, 1574 (July 1984). The question of whether a 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).

Machado testified that men were on foot below the highwall, and photos show three

blasters with a spotter below the 480 north. Resp. Ex. 21, DOL 181, 182, 183. There are cracks

in the wall above where they are working. The critical question is not whether the material on the

highwall will fall, but when will it fall, thereby making it reasonably likely that rock and material

will fall and cause an injury. In most circumstances, a fall will occur when the wall is subjected

to weather, earth tremors, blasting and other secondary events. Machado agreed that the mine

33 FMSHRC Page 2283
stayed away from the highwall after a rain. Further, he stayed away from the wall for 24 hours

after a blast. Clearly, these precautions are to avoid rolling or falling material. Unfortunately, as

Johnson explained, a rainstorm alone cannot predict falling material. It may take several storms

and the fall can occur at any time, i.e., days or even weeks after the rainfall. Given the

conditions of the wall as observed by the inspector, and the limited precautions taken by the

mine, I find that the hazard contributed to, falling material striking miner operated equipment or

an actual miner, is at least reasonably likely to occur in the continued course of mining.

Hilde testified to the hazard of rock coming into the cab of the loader or being large

enough to crush the cab of the loader. Further, he testified to the hazard of material falling on

those working without benefit of any talus pile below the 480 north. “Most highwall injuries

occur when loose pieces of rock fall on workers located below. Small pieces of rock can be

dangerous when they fall from great height; even a fist-sized rock caused a recent fatality.” 

Christopher Mark Ph.D. & Anthony T. Iannacchione Ph.D., Ground Control Issues for Safety

Professionals, in MINE HEALTH AND SAFETY MANAGEMENT 365 (Michael Karmis ed., 2001).

As described above, I have found that a violation of 30 C.F.R. § 56.3130 existed at the

Pebbly Beach Quarry where loading operations occurred at the base of a highwall well in excess

of one hundred feet where loose and overhanging material were present. By the operator’s own

admission, it appears that loading operations have proceeded at the Pebbly Beach Quarry in this

manner for many years. Connolly-Pacific’s failure to provide and maintain protective catch

benches or appropriate muck/talus piles at the north end of the quarry significantly increases the

likelihood of falling rock striking and injuring an employee. The same is true of its inability to

scale and bring down loose material before it unexpectedly falls. For these reasons, I uphold the

Secretary’s designation of the violation as significant and substantial.

3. Negligence

Inspector Hilde determined that the violation was the result of moderate negligence. I

note that Connolly-Pacific does not employ a mining/quarry plan customary in many surface

mines and failed to establish protective catch benches clearly outlined in the MSHA Program

Policy Manual. However, Connolly-Pacific did establish protective berms in at least some

portions of the quarry, conducted routine inspections of the quarry walls, and employed a spotter

during mucking operations. Thus, I agree that the operator’s negligence was moderate and

assess a penalty of $1,000.00.

b. Docket No. WEST 2011-1066-RM - Citation No. 8607225

On May 24, 2011 Inspector Hilde issued Citation No. 8607225 at the Pebbly Beach

Quarry for a violation of 30 C.F.R. § 56.3131. The citation, as amended, alleges, in part, the

following: 

At the south end of the 480 level, a Cat 992 D Loader, Co # 5, was

loading under an approximate three hundred foot highwall. The

lower approximately seventy feet, containing material that had slid

33 FMSHRC Page 2284
or raveled off the highwall, was at angle of repose of

approximately 45 degrees. The slope of the remaining

approximate two hundred thirty feet of wall ranged from seventy

two to ninety degrees. The top of the wall had loose and

unconsolidated materials and boulders and extensive raveling at

the perimeter of the quarry wall. The loader was cleaning material

that had raveled and slid off the wall. There was also recent

activity at the north end of the 480 level where material had been

cleaned up under overhanging material. The operator failed to

correct conditions at and near the perimeter of the quarry wall that

created a fall of material hazard to persons working below.

Inspector Hilde found that a fatal injury was reasonably likely to occur, that one person was

affected, that the violation was significant and substantial, and that the violation was the result of

moderate negligence. The conditions described in this citation relate to the same highwall

discussed in the previous citation.

1. The Violation

Hilde cited a violation of 30 C.F.R. § 56.3131, which requires the following: 

In places where persons work or travel in performing their

assigned tasks, loose or unconsolidated material shall be sloped to

the angle of repose or stripped back for at least 10 feet from the top

of the pit or quarry wall. Other conditions at or near the perimeter

of the pit or quarry wall which create a fall-of-material hazard to

persons shall be corrected.

The photos taken the day of the inspection show large overhanging rock formations

present on the perimeter of quarry wall. The formations are near vertical and the rock has clearly

not been stripped back or sloped to the angle of repose. Fracture lines are clearly evident in at

least one of the photos. See Resp. Ex. 15, DOL 072. Vamossy noted that the face of the wall

had protrusions which could cause falling rock to bounce outward from the highwall. Hilde

indicated that the slope of the talus pile at 480 south was probably in good condition, that it was

at an angle of repose and, therefore, is not a part of the citation. The focus of this citation is on

the highwall above the talus pile in the 480 south and the entire highwall in the 480 north where

the talus pile had been completely removed.

While both expert witnesses testified that the possibility of mass failure at the 480 level

was unlikely, Connolly-Pacific’s witnesses testified that smaller rock fall events occurred during

rainy conditions and the mine’s expert explained that a number of secondary events can cause

rocks to fall or roll off the highwall. The evidence presented by the Secretary demonstrates that

persons work or travel under the highwall, particularly the loader who was mucking the talus pile

on the south end, and the area in the north end where the talus pile had been completely removed

33 FMSHRC Page 2285
up to the toe of the highwall. The loose and cracked rock on the highwall had not been corrected

or sloped back from the face.

Dr. Johnson’s testimony on behalf of Connolly-Pacific focused on the stability of the

talus pile and the unlikelihood of a massive failure. However, he conceded that individual rock

falls are an unpredictable process that can occur at any time. The implementation of a spotter

during mucking operations appears to have been motivated at least in part by the recognition of

the distinct possibility of a rock fall from the perimeter highwall. Thus, I conclude that the

Secretary has met her burden of establishing that a rock fall hazard existed at the perimeter of the

quarry wall and had not been corrected.

In determining whether or not these conditions affected active areas of the quarry, I first

credit Inspector Hilde’s observation of tire tracks at the base of the north highwall. Additionally,

as Connolly-Pacific did not establish protective catch benches or post effective warning signs or

berms in the subject areas of the 480 level, I find that the conditions at the perimeter of the

highwall were present in “places where persons work or travel in performing their assigned

tasks.” Therefore, I find that the Secretary has established a violation of 30 C.F.R. § 56.3131.

The Contestant also argues that the cited loose material was in fact sloped to the angle of

repose, thereby satisfying the standard. While I agree with the Contestant that the talus pile at

the base of the 480 south was sloped to the angel of repose, I have already found that loose

material, which presented a hazard, existed on the highwall above the talus pile at the 480 south

and on the highwall at the 480 north, and was not sloped to the angle of repose. For that reason,

I find no merit to the Contestant’s argument.

2. Significant and Substantial

I have previously found that there is a violation of the mandatory safety standard, 30

C.F.R. §56.3131, as alleged by the Secretary. Second, I find that a discrete safety hazard existed

as a result of the violation, i.e., the danger of a rock fragment falling from a height of several

hundred feet and striking a loader operator and/or his equipment or other employees of the mine

near the highwall. Third, the hazard described, a boulder or rock falling from a height of several

hundred feet and striking equipment or an employee, will result in an injury and, fourth, that

injury will be serious, or even fatal. 

As described above, I have found that a violation of 30 C.F.R. § 56.3131 existed at the

Pebbly Beach Quarry where loose and overhanging material was present at the top of a highwall

in excess of one hundred feet in height. By the operator’s own admission, it appears that similar

highwall conditions have existed at the Pebbly Beach Quarry since at least the last major blasting

event in 2004. Connolly-Pacific’s failure to strip back, slope, or perform controlled blasting to

remove loose material at the highwall, significantly increases the likelihood of falling rock

striking and injuring an employee. The secondary events discussed by both expert witnesses,

including earthquakes and rain, can occur at any time, resulting in a rock slides or falling rock. 

Even with spotters present, the workers are not adequately protected from falling or rolling rock. 

33 FMSHRC Page 2286
For these reasons, I uphold the Secretary’s designation of the violation as significant and

substantial.

3. Negligence

Inspector Hilde determined that the violation was the result of moderate negligence. 

Connolly-Pacific conducted routine inspections of the quarry walls, employed a spotter during

mucking operations, and made some attempt to control the highwall with blasting. Thus, I agree

that the operator’s negligence was moderate and assess a penalty of $550.00.

c. Docket No. WEST 2011-1067-RM - Citation No. 8607226

On May 24, 2011 Inspector Hilde issued Citation No. 8607226 at the Pebbly Beach

Quarry for a violation of 30 C.F.R. § 56.3200. The citation, as amended, alleges, in part, the

following: 

At the south end of the 480 level, a Cat 992 D Loader, Co # 5, was

loading under an approximate three hundred foot highwall. The

lower approximate seventy feet, containing material that had slid

or raveled off the highwall, was at angle of repose of

approximately 45 degrees. The slope of the remaining

approximate two hundred thirty feet of wall ranged from seventy

two to ninety degrees. The top of the wall had loose and

unconsolidated material and there was a rock at the top that

appeared fractured with loose rocks overhanging the slope. The

operator failed to post or restrict access to the area under the south

end at the 480 level where hazardous conditions existed before

permitting work in the area. The operator also failed to restrict or

post an area at the north end of the 480 level where material had

been cleaned up to the base of the highwall under overhanging

material. The north end of the highwall was not attended and there

was vehicle traffic going past this area.

Inspector Hilde found that a fatal injury was reasonably likely to occur, that one person was

affected, that the violation was significant and substantial, and that the violation was the result of

moderate negligence. The conditions described in this citation relate to the same highwall

discussed in the previous two citations.

1. The Violation

Hilde cited a violation of 30 C.F.R. § 56.3200, which requires the following: 

Ground conditions that create a hazard to persons shall be taken

down or supported before other work or travel is permitted in the

affected area. Until corrective work is completed, the area shall be

33 FMSHRC Page 2287
posted with a warning against entry and, when left unattended, a

barrier shall be installed to impede unauthorized entry.

Since I have already determined that a hazard did exist, see discussion supra, the violation is

established. The operator does not dispute that there was no posting or barricade in the area

below both the 480 north and the 480 south. In fact, one of the witnesses, Scott, said that the

mine had intended to extend the berm that was currently in place between the 480 north and

south to the 480 north section, but they simply hadn’t had enough time before the inspector

arrived. I take this to indicate that the mine understood that there was a hazardous condition at

the 480 north. Scott testified that employees were told not to enter the area, but it had not yet

been barricaded.

“[B]efore finding an operator in violation of section 56.3200, it is only proper that

conditions be shown to pose a danger from an objective standpoint.” Shine Quarry Inc., 17

FMSHRC 1397, 1401 (Aug. 1995) (ALJ). I have already found that hazardous ground

conditions, including loose overhanging material at the highwall perimeter and the absence of

protective catch benches, were present at the 480 level of the Pebbly Beach Quarry and

constituted violations of 30 C.F.R.§§ 56.3130 and 56.3131. Accordingly, I find that “ground

conditions that created a hazard” were present at the Pebbly Beach Quarry and provide a

sufficient basis for the issuance of a section 56.3200 citation in the absence of effective warnings

or barriers. As discussed more fully above, I do not accept Johnson’s view that a hazard is

created only after a secondary event has taken place. A secondary event is not predictable and,

in the case of rain, it is not known how much rain must fall or how often the rain must occur in

order for rock to slide or fall, nor is it known how long an amount of rain will continue to impact

the highwall after the rain has ceased to fall.

Inspector Hilde credibly testified that the protective berm along the haul road did not

adequately extend to either the north or south end of the 480 pit level. As previously noted, I

credit Inspector Hilde’s testimony that tire tracks were present at the toe of the north highwall,

thereby indicating recent operations in this area. 

Connolly-Pacific has not presented evidence contending that warnings were posted at

these areas. It also has not argued that it posted an employee to direct traffic away from these

areas. Connolly-Pacific has offered portions of their Ground Control and Spotter Training

Manual that it contends adequately educated employees on the dangers of entering areas with

hazardous conditions. I first note that, while training materials such as these may speak to an

operator’s level of negligence, if any, regarding a particular violation, they are not substitutes for

the specific requirements of 30 C.F.R. § 56.3200 that mandate barricades and/or warning signs in

hazardous areas. Additionally, while Scott’s testimony regarding the intention to build a berm at

the 480 north seems to indicate the acknowledgment of a hazard, it appears that Connolly-Pacific

employees did not consider the north end of the highwall hazardous given that there were tire

tracks that indicated mucking operations had occurred at the base of the highwall. For these

reasons, I find that the Secretary has established that a violation of 30 C.F.R. § 56.3200 existed

at the Pebbly Beach Quarry on May 24, 2011.

33 FMSHRC Page 2288
The operator argues that the three citations discussed above are duplicative in nature and

that, “in the event that Citation No. 8607224 is sustained, . . . at a minimum, Citations No.

8607225 and 8607226 should be vacated because they are duplicative.” Cont. Br. 23. However,

although it is obvious that the hazard referenced in the language of section 56.3200 is

conditioned upon a separate ground control violation, the Commission has held that 56.3200 is

not a duplicative regulation and has stated the following: 

[T]he requirements of sections 56.3200 and 56.3130 are different. 

Section 56.3130 requires that an operator use mining methods that

maintain wall stability and sets forth additional requirements if

benching is necessary. In contrast, section 56.3200 requires that, if

a hazardous ground condition occurs, it be corrected and entry into

the area be restricted until corrective work is completed. The

standards are related in that an operator’s failure to mine in a way

that maintains stability may also result in a hazardous condition

requiring an operator to restrict access until the hazardous

condition is corrected. As the Commission has recognized: 

[t]he 1977 Mine Act imposes a duty upon operators

to comply with all mandatory safety and health

standards. It does not permit an operator to shield

itself from liability for a violation of a mandatory

safety standard simply because the operator violated

a different, but related, mandatory standard. 

El Paso Rock Quarries, Inc., 3 FMSHRC 35, 40 (January 1981). 

Cyprus Tonopah Mining Corp., 15 FMSHRC at 378. Just as section 56.3200 is not duplicative

of section 56.3130 since it requires a “separate and distinct dut[y] upon the operator,” section

56.3131 is also not duplicative, as it also requires a separate and distinct duty, i.e., the sloping of 

loose or unconsolidated material to the angle of repose or the stripping back of material for at

least 10 feet from the top of the pit or quarry wall in areas where miners work or travel while

performing assigned duties. Id. at 378; 30 C.F.R. § 56.3131. For these reasons, I find the

Contestant’s argument to be without merit.

2. Significant and Substantial

I have found that there is a violation of the mandatory safety standard, i.e., 30 C.F.R. §

56.3200, as alleged by the Secretary. Second, I find that a discrete safety hazard existed as a

result of the violation; i.e., the danger of an employee entering an unmarked or unbarricaded area

with hazardous ground conditions and being struck by a falling or rolling rock. Third, the hazard

described, that of rock falling from a height of several hundred feet and striking equipment or an

employee in the unmarked and unbarricaded area, will result in an injury and, fourth, that injury

will be serious, or even fatal. 

33 FMSHRC Page 2289
As described above, I have found that a violation of 30 C.F.R. § 56.3200 existed at the

Pebbly Beach Quarry where barriers or warnings were not adequately established at areas with

hazardous ground conditions. By the operator’s own admission, it appears that employees have

been allowed to operate in areas with hazardous ground conditions in this manner for a number

of years. Connolly-Pacific’s failure to adequately berm or post warning signs at areas with

hazardous ground conditions significantly increases the likelihood of an employee entering a

hazardous area and being struck by falling rock. For these reasons, I uphold the Secretary’s

designation of the violation as significant and substantial.

3. Negligence

Inspector Hilde determined that the violation was the result of moderate negligence. I

note that Connolly-Pacific did establish protective berms in at least some portions of the quarry,

trained employees in recognizing hazardous ground conditions, and employed a spotter during

mucking operations in an attempt to warn operators of rock fall events. However, Scott agreed

that the 480 north area should have been bermed to prevent travel in that area, but the mine had

simply not gotten around to constructing that berm before the inspector arrived. There is no

indication that it was scheduled to be built, however, Scott’s testimony shows that the mine was

aware of the necessity. Thus, it is difficult to agree that the negligence was moderate and I

assess a penalty of $1,000.00.

d. Docket No. WEST 2011-1064-RM - Order No. 8607223

On May 24, 2011, Inspector Hilde issued section 107(a) withdrawal Order No. 8607223

directing Connolly-Pacific to cease mining operations in the referenced areas upon the basis of

the three citations discussed above. Section 107(a) of the Mine Act provides: 

If, upon any inspection or investigation of a coal or other mine

which is subject to this Act, an authorized representative of the

Secretary finds that an imminent danger exists, such representative

shall determine the extent of the area of such mine throughout

which the danger exists, and issue an order requiring the operator

of such mine to cause all persons, except those referred to in

section 104©, to be withdrawn from, and to be prohibited from

entering, such area until an authorized representative of the

Secretary determines that such imminent danger and the conditions

or practices which caused such imminent danger no longer exist.

The issuance of an order under this subsection shall not preclude

the issuance of a citation under section 104 or the proposing of a

penalty under section 110.

30 U.S.C. § 817(a).

When Hilde arrived at the Pebbly Beach Quarry on May 24, 2011, he observed quarry

walls ranging up to at least 300 feet in height without any benches. Further, he observed loose

and overhanging rock at the top perimeter of the quarry walls and tire tracks at the toe of

33 FMSHRC Page 2290
highwall. Hilde inquired of mine management and was informed by Connolly-Pacific that no

mining plan or geologic study of the area was in use. He learned that the protective measures

implemented by Connolly-Pacific were limited to visual pre-shift quarry wall inspections from

the base of the pit, weekly inspections from the top of the wall, the incomplete catch berm along

the haul road that failed to extend to the north and south ends of the 480 level, the protective cab

of the 992 Cat Loader, limited blasting, and the use of a spotter to warn the loader operator of

falling rock after it began to slide, fall or roll. Hilde could see that the area had no benches and

learned that scaling was not conducted at the mine, primarily due to the extreme height of the

highwall. He inquired about protective measures, asked for studies, and sought any tools or

measuring devices the mine might utilize to maintain the highwall. He received little, if any,

information. Hilde was informed that the mine employs coyote blasting but that it had not been

done for a number of years. He also learned that the mine used gravity, watched the areas, and

allowed the rock to fall. Given his observations, his conversations with Vamossy, and the

information learned from the mine, it was his understanding that the highwall was not only a

hazard, but that it was an immediate hazard. The photos taken by Hilde and Vamossy bear out

their initial thoughts about the highwall.

Section 3(j) of the Act defines “imminent danger” as the “existence of any condition or

practice in a coal or other mine which could reasonably be expected to cause death or serious

physical harm before such condition or practice can be abated.” 30 U.S.C. § 802(j). As

previously noted, section 107(a) of the Act provides for the issuance of an order requiring the

withdrawal of persons in areas of a mine who are exposed to such an imminent danger.

Imminent danger orders permit an inspector to remove miners

immediately from a dangerous situation, without affording the

operator the right of prior review, even where the mine operator

did not create the danger and where the danger does not violate the

Act or the Secretary’s regulations. This is an extraordinary power

that is available only when the “seriousness of the situation

demands such immediate action.”

Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991) (quoting Sen. Rep. No. 91-411,

reprinted in Senate Subcomm. On Labor, Comm. on Labor and Public Welfare, Part I Legislative

History of the Federal Coal Mine Health and Safety Act of 1969, at 215 (1975). 

An imminent danger exists “when the condition or practice observed could reasonably be

expected to cause death or serious physical harm to a miner if normal mining operations were

permitted to proceed in the area before the dangerous condition is eliminated.” Eastern

Associated Coal Corporation v. IBMA, 491 F.2d 277, 278 (4th Cir. 1974). The Seventh Circuit

adopted the same interpretation in Old Ben Coal Corp. v. IBMA, 523 F.2d 25, 33 (7th Cir. 1975). 

See also Wyoming Fuel Co., 14 FMSHRC 1282, 1290 (Aug. 1992) (quoting Rochester &

Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989)). While the concept of imminent

danger is not limited to hazards that pose an immediate danger, “an inspector must ‘find that the

hazardous condition has a reasonable potential to cause death or serious injury within a short

period of time.’” Cumberland Coal Resources, LP, 28 FMSHRC 545, 555 (Aug. 2006) (quoting

Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991)). Inspectors must determine

33 FMSHRC Page 2291
whether a hazard presents an imminent danger without delay, and a finding of an imminent

danger must be supported “unless there is evidence that [the inspector] had abused his discretion

or authority.” Rochester & Pittsburgh Coal Co., 11 FMSHRC at 2164. While an inspector has

considerable discretion in determining whether an imminent danger exists, that discretion is not

without limits. An inspector must make a reasonable investigation of the facts, under the

circumstances, and must make his determination on the basis of the facts known, or reasonably

available to him. As the Commission explained in Island Creek Coal Co., 15 FMSHRC 339,

346-347 (Mar. 1993): 

While the crucial question in imminent danger cases is whether the

inspector abused his discretion or authority, the judge is not

required to accept an inspector’s subjective “perception” that an

imminent danger existed. Rather, the judge must evaluate

whether, given the particular circumstances, it was reasonable for

the inspector to conclude that an imminent danger existed. The

Secretary still bears the burden of proving [her] case by a

preponderance of the evidence. Although an inspector is granted

wide discretion because he must act quickly to remove miners

from a situation that he believes to be hazardous, the

reasonableness of an inspector’s imminent danger finding is

subject to subsequent examination at the evidentiary hearing.

An inspector “abuses his discretion . . . when he orders the immediate withdrawal of miners

under section 107(a) in circumstances where there is not an imminent threat to miners.” Utah,

Power & Light Co., 13 FMSHRC at 1622-23. In assessing an inspector’s exercise of his

discretion, the focus is on “whether the inspector made a reasonable investigation of the facts,

under the circumstances, and whether the facts known to him, or reasonably available to him,

supported the issuance of the imminent danger order.” Wyoming Fuel Co., 14 FMSHRC 1282,

1292 (Aug. 1992).

The critical question in determining whether a highwall presents an imminent danger is

whether there is a condition on the highwall such that rock or debris could reasonably be

expected fall or roll within a short period of time, thereby resulting in death or serious injury. 

Within the above framework of law and the evidence of record, I find that the inspector did not

abuse his discretion in issuing the imminent danger order. Given the conditions that both Hilde

and Vamossy observed, and the information they learned as a result of their inquiries, it is

reasonable to believe that a fall of rock or debris was imminent, thereby threatening the safety of

the miners working below. The expert testimony offered by Dr. Johnson criticizes Hilde’s

decision to issue the withdrawal order after observing the 480 level for only five minutes. 

However, the conditions described above were readily apparent and Connolly-Pacific site

personnel confirmed that these conditions were consistent with the de facto quarrying method in

operation at this level. Finally, the conditions described at the 480 level fail to conform to the

most basic methods of industry accepted highwall maintenance, which would reasonably lead

Hilde to believe that an imminent danger existed. For the reasons above, I uphold the issuance

of Order No. 8607223.

33 FMSHRC Page 2292
The Contestant relies upon my decision in Cargill Deicing Tech., 32 FMSHRC 1848,

1852 (Dec. 2010), and argues that the inspectors’s “visual inspection was not well-informed and

[was] based on erroneous or incomplete information,” and, therefore, because “an inspector’s

visual inspection of loose gravel is not per se sufficient evidence to prove a hazard,” no hazard

has been shown and no imminent danger existed. Cont. Br. 15. I have already discussed the

hazard that existed in this case, and, while a visual inspection may not per se prove the existence

of a hazard, I find that the preponderance of the evidence does establish the presence of hazard

which presented an imminent danger.

III. PENALTY

A penalty of $555.00 has been proposed for each of the three citations contested by the

mine operator and discussed above. Although this was initially an expedited notice of contest

case, the parties agreed to address the issue of the penalty at hearing and the penalty docket has

subsequently been assigned to me and is now been joined with the contest dockets. 

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

the penalty. 29 C.F.R. § 2700.28. The Act requires that, in assessing civil monetary penalties,

the Commission [ALJ] shall consider the six statutory penalty criteria: 

[1] the operator’s history of previous violations, [2] the

appropriateness of such penalty to the size of the business of the

operator charged, [3] whether the operator was negligent, [4] the

effect on the operator’s ability to continue in business, [5] the

gravity of the violation, and [6] the demonstrated good faith of the

person charged in attempting to achieve rapid compliance after

notification of a violation.

30 U.S.C. § 820(I). I accept the stipulation of the parties that the penalties proposed are

appropriate to this operator’s size and ability to continue in business. The violations have not yet

been abated, but instead the mine has moved to another area to continue its operations. The

history shows the past violations at this mine, including citations for the standards discussed

above. I have discussed the negligence and gravity associated with each citation above and have

assessed the following penalties:

33 FMSHRC Page 2293
Citation/Order No. Amount

8607224 $ 1,000.00

8607225 $ 550.00

8607226 $ 1,000.00

Total: $ 2,550.00

IV. ORDER

Based on the criteria in section 110(I) of the Mine Act, 30 U.S.C. § 820(I), I assess the

penalties listed above and Connolly-Pacific is hereby ORDERED to pay the Secretary of Labor

the sum of $2,550.00 within 30 days of the date of this decision.

/s/ Margaret A. Miller 

Margaret A. Miller

Administrative Law Judge

Distribution: (Certified Mail)

Susan Seletsky, Office of the Solicitor, U.S. Department of Labor, World Trade Center, Suite

370, 350 S. Figueroa St., Los Angeles, CA 90071-1202

Adele L. Abrams, Law Office of Adele L. Abrams, P.C., 4740 Corridor Pl., Suite D, Beltsville, 

MD 20705

33 FMSHRC Page 2294
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

September 28, 2011

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. PENN 2009-617

Petitioner : A. C. No. 36-09326-188103

:

v. : 4 West Mine

:

DANA MINING COMPANY OF :

 PENNSYLVANIA, LLC :

Respondent :

:

DANA MINING COMPANY OF : CONTEST PROCEEDINGS

 PENNSYLVANIA, LLC :

Contestant : Docket No. PENN 2009-461-R

: Order No. 8007789; 04/15/2009

v. :

: Docket No. PENN 2009-462-R

SECRETARY OF LABOR, : Order No. 8007789; 4/15/2009

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : 4 West Mine

Respondent :

Appearances: Najah A. Farley, Esq., Office of the Solicitor, U.S. Department of Labor,

Philadelphia, Pennsylvania, on behalf of the Petitioner/Respondent; 

Christopher D. Pence, Esq., Allen Guthrie & Thomas PLLC, Charleston, West

Virginia, on behalf of the Respondent/Contestant.

Before: Judge Lesnick

DECISION

This case is before me on a Petition for the Assessment of Civil Penalty filed by the

Secretary of Labor on behalf of her Mine Safety and Health Administration (“MSHA”), against

Dana Mining of Pennsylvania LLC (“Dana Mining”), pursuant to section 105 of the Federal

Mine Safety and Health Act of 1977 (“Act” or “Mine Act”), 30 U.S.C. § 815. The Secretary

seeks civil penalties in the amount of $12,455.00 for three alleged violations of the Act and her

mandatory safety standards. Two of the alleged violations at issue (as set forth in Order Nos.

8007789 and 8007790) were contested by Dana Mining, and were the subject of an expedited

33 FMSHRC Page 2295
hearing held in Washington, D.C. on April 30 and May 1, 2009. The parties’ Post-hearing Briefs

are of record. 

While awaiting proposed penalties for the contested orders, I referred the contest

proceedings to the Commission’s Settlement Attorney. Settlement negotiations were

unsuccessful. On May 27, 2010, just over a year after MSHA issued the orders that were the

subject of the expedited hearing, the Secretary filed the Petition for the Assessment of Civil

Penalty that is before me in Docket No. PENN 2009-617, and which includes proposed penalties

for Order Nos. 8007789 and 8007790, and an additional Order No. 8007570. On April 21, 2011,

I noticed the consolidated proceedings for a hearing. On June 10, 2011, the parties filed a Joint

Motion for Decision Based on Stipulations and Evidence, and on July 7, 2011, filed a Motion for

Decision and Order Approving Settlement as to Order No. 8007570.

For the reasons set forth below, I GRANT the Motion for Decision and Order Approving

Settlement as to Order No. 8007570, and I VACATE Order Nos. 8007789 and 8007790. 

Stipulations

Before the hearing, the parties stipulated as follows: 

1. At all relevant times, Dana Mining was the “operator” of the 4 West Mine (Mine

Identification No. 36-09326) within the meaning of the Act, 30 U.S.C. § 802(d). 

2. At all relevant times, the 4 West Mine was a “coal or other mine” within the meaning

of the Act, 30 U.S.C. § 802(h). 

3. At all relevant times, the products of the 4 West Mine facility entered commerce, or

the operations or products of the 4 West Mine affected commerce, within the meaning of the

Act, 30 U.S.C. §§ 802(b) and 803.

4. Dana Mining is subject to the jurisdiction of the Act.

5. The orders at issue, as well as any modifications thereto, were properly served by a

duly authorized representative of the Secretary upon an agent of Dana Mining on the date and

place stated therein.

In their Joint Motion for Decision Based on Stipulations and Evidence, the parties further

stipulated as follows as to Order Nos. 8007789 and 8007790:

6. The parties adopt their respective evidence, arguments, and positions adduced at the

hearing on April 30 and May 1, 2009, and in subsequent briefs, motions, and pleadings filed with

the Court. 

7. Dana Mining demonstrated good faith in the abatement of the violations.

8. The Assessed Violation History Report provided by the Secretary is authentic, and

33 FMSHRC Page 2296
accurately reflects the history of violations at each of Dana Mining’s three mines during the time

period that Dana Mining operated such mines.

9. The proposed civil penalty of $10,455.00 was based on a consideration of the factors

set forth in section 110(i) of the Mine Act, 30 U.S.C. § 810(i), and imposition of the proposed

penalties will not affect Dana Mining’s ability to remain in business. 

10. In 2009, Dana Mining produced 1,820,595 tons of coal, of which 895,034 were

produced from the 4 West Mine.

Order No. 8007570

As a preliminary matter, I shall dispose of the joint motion to approve a partial settlement

of Docket No. PENN 2009-617 the parties have filed. The parties request that Order No.

8007570 be modified from a section 104(d)(1) order to a section 104(a) citation, and from high

to moderate negligence. As a basis for these modifications, the parties state that Dana Mining

“could produce evidence tending to demonstrate reduced negligence, based on the Operator’s

allegation that Management was unaware that the escapeway maps [at issue] in those particular

locations had not been updated in a timely fashion, and as such, the Operator’s actions did not

rise to the level of aggravated conduct.” The parties agree that the proposed penalty of

$2,000.00 remain as proposed. 

I have considered the representations and documentation submitted as to Order No.

8007570, and I conclude that the proffered settlement is appropriate under the criteria set forth in

section 110(i) of the Act, 30 U.S.C. § 810(i). The motion for approval of settlement is therefore

GRANTED.

Summary of the Evidence

Dana Mining operates the 4 West Mine, an underground coal mine located in Greene

County, Pennsylvania. On April 15, 2009, MSHA Inspector Walter Young conducted a regular

inspection of the 4 West Mine. Young was accompanied by his supervisor, Russell Riley,

MSHA District 2 Manager Bill Poncerof, MSHA Inspector Trainee, Mark Anderson, and the

foreman of the 4 West Mine, Jim Moreau. (Tr. 31, 533.) The group traveled to the working

section from the loading point inby at the number 37 crosscut. (Tr. 39-40.) Upon arriving,

Young began his inspection there. (Tr. 284.) 

Young walked across the tailpiece and observed what in his opinion were excessive

accumulations of combustible material, particularly in the number 3 entry from the tailpiece and

extending inby. (Tr. 29–30.) Young observed accumulations throughout the section, “to the

point . . . where it was compacted in the ruts. It was loose on the sides[,] and [he] felt it created a

hazard.” (Tr. 30–31, 62.) According to Young, the accumulations “were ground up fine” and

“pulverized” as a result of equipment running over them for an extended period of time. (Tr.

35–36.) Young testified that the accumulations were comprised mostly of coal. Referring to one

33 FMSHRC Page 2297
1

 Both the Secretary and Dana Mining introduced into evidence numerous photographs

of the cited area. Exs. G-4 and C-3A-3K. As with many photographs taken underground in coal

mines, it is difficult to draw any definitive conclusions based upon them. In fact, the testimony

as to what the photographs portray is so contradictory that I have not relied upon them in

reaching my decision.

2

 A citation not included in these proceedings was issued on the cable splice. (Tr. 152.)

of many photographs of the accumulations he took (Ex. G-4),1

 Young stated: “there’s about six

inches of fine coal dust and loose coal fines on the mine floor in this picture.” (Tr. 71.) He also

testified:

I’m not saying that there isn’t a small amount of rock [in it] which

you can see by these pictures and by other areas that I’ve dug in

there, that is my opinion as a miner with 25 years experience. That

. . . is crushed up fine coal. There’s a small amount of rock dust on

the top of it which you can see. 

(Tr. 72.) Young measured the depth of the accumulations, which ranged from one to 11 inches

deep. (Tr. 82, 86.) 

Young also found a damaged splice in a power cable that, in his opinion, was a potential

ignition source because it posed a danger of sparking or arcing.2 (Tr. 141-149.) Riley used his

foot to roll the cable over and saw that where the cable had been spliced, the red phase lead was

exposed. (Tr. 286-288.) Riley, a certified electrician (Tr. 268), believed this was a “very

dangerous” condition because of the threat of electrical shock and ignition of combustible

materials from sparks. (Tr. 287-288.)

Dana Mining’s witnesses hotly disputed the nature of the accumulations which Young

found. Greg Miller, the production coordinator at the 4 West Mine, was present during much of

Young’s inspection on April 15. (Tr. 315, 317.) He explained that the floor (or “bottom”) of the

4 West Mine is composed of shale rock that is black like coal and noncombustible, along with

dark gray “fireclay.” (Tr. 429-430.) Asked to explain the difference between coal and shale

rock, Miller testified: “Shale rock will have - - you will see a lot of triangle shapes. [Referring

to Ex. G-4, photo 157, item 11:] I can see a piece right here now and I’m pretty certain that’s not

coal in this snapshot with the rock dust all over it.” (Tr. 452.) He stated that the combination of

shale and clay on the mine floor led to “[t]hat bottom being soft by nature[.] I could dig you a

[hole in it] probably two feet [deep] if you want me to with the clay and the black rock. I could

probably dig deeper than that.” (Tr. 434.) Although Miller also testified that some coal was

present in the bottom along with the noncombustible materials (Tr. 435, 437), he did not see any

accumulations of combustible coal as described by Young (Tr. 431, 489). Miller opined that

Young could have misidentified the black shale rock and fireclay as coal. (Tr. 431.) 

Miller also testified that the cited area was “well dusted, well cleaned.” (Tr. 318.) He

also stated that there was “no spillage whatsoever” in the feeder area. (Tr. 328.) Miller

33 FMSHRC Page 2298
3

 Section 75.400 states: “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. 

explained further that the cited area had not been in use for the five production days before the

inspection. (Tr. 320-321.) In addition, the area had been cleaned and dusted several times since

the last production shift. (Tr. 322.) 

Miller’s testimony on the mine floor was corroborated by mine foreman James Moreau,

who testified that the floor of the 4 West Mine consists of black or gray shale and gray fireclay. 

(Tr. 535-536.) Moreau also testified that the cited area contained no accumulations of

combustible materials, and that he did not believe that the spliced cable posed any threat of

arcing. (Tr. 537, 547.) 

Greg Miller’s son, Justin Miller, a section foreman at the 4 West Mine (Tr. 570), also

testified as to the composition of the floor of the 4 West Mine: 

You may have a little bit of coal and the nature of what we are

seeing right now, and at that time especially, is we have real thin

layers of shale rock. It’s dark gray and black and it breaks up very

easily during the production of coal.

. . .

With the bottoms breaking up how they have been, you know, that

is basically the consistency you have with those real thin like shelf

rock. It just breaks very easily. A shuttle car breaks up that bottom.

(Tr. 581, 593.) When asked whether shale can mimic the appearance of coal, Justin Miller

responded “Oh, yes.” (Tr. 593.) He further testified that he saw no accumulations of

combustible material in the cited area “knowing the bottoms we have at the 4 main section [i.e.,

the cited area] . . . [a]fter watching him dig through those areas I know what the bottom

consist[s] of with the gray shale, the black shale rock in the bottom.” (Tr. 597-598.)

When called as a rebuttal witness, MSHA Inspector Young testified only that no one

from Dana Mining told him that the material he found was stone, shale, or fireclay. (Tr. 622.) 

Young neither reiterated nor elaborated upon any of his earlier testimony. He did not, for

instance, state any basis for his belief that the accumulations he cited were composed of

combustible amounts of coal. 

Based upon his observations during his inspection, Young issued a section 104(d) order

for a violation of section 75.400.3

 The order includes sixteen numbered items, each

corresponding to a specific area in the cited section of the mine where Young observed what he

believed were accumulations. Order No. 8007789. Young testified that the mine personnel

33 FMSHRC Page 2299
4

 Section 75.360(b) states, in relevant part: “The person conducting the preshift

examination shall examine for hazardous conditions, test for methane and oxygen deficiency,

and determine if the air is moving in its proper direction. . . .” 30 C.F.R. § 75.360(b). 

responsible for conducting preshift examinations of the cited area for the several shifts prior to

the inspection, as well as mine management, should have been aware of the presence of

excessive accumulations in the section, but that there were no notations of any such

accumulations in the examination book. (Tr. 186-187.) Young stated his belief that the

accumulations were present for “several shifts.” (Tr. 187.) Paul Sebesky, the mining examiner

who preshifted the cited area, testified that during his preshift examination, he found no

hazardous conditions. (Tr. 504-516.) Sebesky specifically testified that he did not find any

accumulations of combustible materials during his preshift examination. (Tr. 517.) 

Based upon the combustible accumulations he believed existed, as well as the failure of

any notation being made of them in any examination book, Young issued a second section

104(d) order for a violation of the preshift examination requirements of section 75.360(b)(3).4

Findings of Fact and Conclusions of Law

The Commission has held that under section 75.400, “an accumulation exists where the

quantity of combustible materials is such that, in the judgment of the authorized representative of

the Secretary, it likely could cause or propagate a fire or explosion if an ignition source were

present.” Old Ben Coal Co., 2 FMSHRC 2806, 2807-08 (Oct. 1980). The judgment of an

MSHA inspector as to whether a violation existed is subject to review under “an objective test 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 Co., 12 FMSHRC 965, 968 (May 1990), aff'd, 951 F.2d

292 (10th Cir. 1991) (citation omitted). 

In addition to these legal standards is the more general rule that the Mine Act imposes on

the Secretary the burden of proving an alleged violation by a preponderance of the credible

evidence. In re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819,

1878 (Nov. 1995), aff'd sub nom. Sec'y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096

(D.C. Cir. 1998) (quoting Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989). 

The preponderance standard means proof that something is more likely so than not so. In re:

Contests of Respirable Dust, 17 FMSHRC at 1838. 

Here, I find the evidence in equipoise. On the one hand, the Secretary offered the

testimony of Inspector Young that the floor of the 4 West Mine in the area he cited consisted

largely of “crushed up fine coal,” with only a small amount of rock in it. (Tr. 71-72.) In fact,

there is no dispute that some coal was present in the floor on the day Young conducted his

inspection. (Tr. 435, 437, 581.) Moreover, the Secretary established that a potential ignition

source was present – the spliced cable. (Tr. 145-149, 287-288.) Had the hearing ended at the

close of the Secretary’s case in chief, clearly, I could easily have concluded that a violation of

section 75.400 existed. 

33 FMSHRC Page 2300
5

 I note also that the Secretary had a similar opportunity to adduce additional evidence at

the hearing set in my order of April 21, 2011, but chose not to do so. 

However, the Secretary’s “she said” was followed by Dana Mining’s equally convincing

“he said” which cast considerable doubt on the Secretary’s allegations. The operator introduced

credible, corroborated, and largely uncontradicted evidence that most of the material Young

found was shale rock and fireclay. (Tr. 429-430, 535-536, 581, 593.) I find the operator’s

evidence particularly compelling because of the specificity with which Greg Miller, Justin

Miller, and James Moreau described the constituents of the mine floor. For example, Greg

Miller described how “[s]hale rock will have - - you will see a lot of triangle shapes,” then

proceeded to point out an example of shale in one of the Secretary’s photographs. (Tr. 452.) He

also highlighted the “soft” nature of the floor. (Tr. 434.) Justin Miller explained how the floor of

the cited area became so pulverized, testifying to the brittle nature of shale, and how it is broken

up by equipment passing over it. (Tr. 581, 593.) 

I am also persuaded by the operator’s assertions that before Young’s inspection, the cited

area had been cleaned and dusted several times, and that at the time of the inspection, the area

was “well dusted, well cleaned,” and free of any spillage. (Tr. 318-328.) 

On rebuttal, the Secretary had every opportunity to contradict the operator’s evidence.5

But Young merely stated that no one told him that the floor of the cited area consisted mainly of

shale and fireclay. (Tr. 622.) I find that Young’s rebuttal testimony was singularly inadequate

for the Secretary to carry her burden of proof in light of the case put on by the operator. I note

that the Secretary did not introduce any evidence, testimonial or otherwise, explaining why

Inspector Young determined that what he found were combustible accumulations of coal. On

rebuttal, the Secretary needed to do more than simply stand by Young’s belief that what he cited

were combustible accumulations, and that no one told him otherwise – even though the record

contains testimony that Dana Mining personnel expressed their incredulity when informed about

the orders Young issued. (Tr. 328, 331-332, 348, 538-539.) The effect of the Secretary’s choice

to stand primarily on her case in chief and forego any attempt to rebut the operator’s evidence is

that she has not met her burden to prove her case – to prove that her allegations were more likely

so than not so. In re: Contests of Respirable Dust, 17 FMSHRC at 1838. 

I am therefore compelled to conclude that the Secretary has not provided enough

evidence to support the violation of section 75.400 as alleged. Because she has not proven that

the hazard alleged existed, I am also compelled to conclude that the Secretary has not met her

burden of proving that the cited preshift examination was inadequate. 

33 FMSHRC Page 2301
6

 Payment may be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S.

DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO

63179-0390.

Order

Consistent with this Decision, IT IS ORDERED that Order Nos. 8007789 and 8007790

are VACATED.

The motion for approval of settlement is GRANTED. 

IT IS FURTHER ORDERED that Order No. 8007570 be MODIFIED from a section

104(d)(1) order to a section 104(a) citation, and from high to moderate negligence, and that Dana

Mining Company of Pennsylvania, LLC pay a penalty of $2,000.00 within 30 days of this order.6

Upon receipt of payment, this case is DISMISSED.

/s/ Robert J. Lesnick 

Robert J. Lesnick

Chief Administrative Law Judge

Distribution (Certified):

Najah A. Farley, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center,

Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306

Christopher D. Pence, Esq., Allen Guthrie & Thomas, PLLC, 500 Lee Street, East, Suite 800,

P.O. Box 3394, Charleston, WV 25333-3394

Ronald M. Miller, Dana Mining Company of Pennsylvania, LLC, 308 Dents Run Road,

Morgantown, WV 26501

33 FMSHRC Page 2302
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE: (412) 920-7240

FACSIMILE: (412) 928-8869

September 28, 2011

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. PENN 2009-548 

 Petitioner : A.C. No. 36-09549-184206-02 

 :

: Docket No. PENN 2009-595 

 : A.C. No. 36-09549-186977 

 v. :

: Docket No. PENN 2009-667 

: A.C. No. 36-09549-190068-02 

:

: Mine ID: 36-09549

: Mine: Kimberly Run 

ROXCOAL, INC. :

 Respondent : Docket No. PENN 2010-31 

: A.C. No. 36-09260-186974 

:

:

:

:

 

 Docket No. PENN 2010-310

 A.C. No. 36-09260-208223

 : Mine ID: 36-09260 

: Mine: Roytown Deep 

AMENDED DECISION

Appearances: Najah A. Farley, Esquire and John M. Strawn, Esquire, Office of the

Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, for

Petitioner;

Vincent J. Barbera, Esquire and Melanie R. Barbera, Esquire, Barbera,

Clapper, Beener, Rullo & Melvin, LLP, Somerset, Pennsylvania, for

Respondent.

Before: Judge Harner

These cases are before me on petitions for assessment of civil penalty filed by the Secretary

of Labor, acting through the Mine Safety and Health Administration, against RoxCoal, Inc.

(herein “Respondent” or “RoxCoal”) at its Kimberly Run mine (3 dockets) and its Roytown

Deep mine (2 dockets), pursuant to sections 105 and 110 of the Federal Mine Safety and Health

Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act” or “Act”). The cases include five

separate docket numbers that contain 47 violations assessed a total penalty of $47,388.00. As set

forth more fully below, the parties have agreed to resolve all but 8 of the violations, leaving

33 FMSHRC Page 2303
1

 The Roytown Deep Mine tonnage was not part of the parties’ stipulation, but was obtained

from the Secretary’s Preliminary Statement filed with me prior to the hearing as an agreed upon

stipulation of the parties.

those for decision here. The parties presented testimony and documentary evidence at a hearing

held in Pittsburgh, Pennsylvania, on June 28 and 29, 2011. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Respondent operates several bituminous coal mines in the Somerset County,

Pennsylvania, area, including the Kimberly Run and Roytown Deep mines involved herein. The

mines are subject to regular inspections by the Secretary’s Mine Safety and Health

Administration (“MSHA”) pursuant to section 103(a) of the Act. 30 U.S.C. § 813(a). At the

hearing, the parties stipulated, at Joint Exhibit 1, that:

1. RoxCoal is the “operator” of both mines within the meaning of the Mine Act;

2. The Kimberly Run Mine and the Roytown Deep Mine were coal mines within the

meaning of the Mine Act;

3. Its products entered commerce, and its operations affected interstate commerce

within the meaning of the Mine Act;

4. RoxCoal is subject to the jurisdiction of the Mine Act;

5. The citations at issue were properly served on RoxCoal by an agent of the Secretary

at the date and place stated therein;

6. RoxCoal demonstrated good faith in the abatement of the violations;

7. RoxCoal’s history of violations assessed as final orders during the 15-month period

prior to the issuance of the respective citations at issue is set forth on Exhibit A of the

respective Petitions for each docket;

8. Payment of the proposed penalties for the citations remaining at issue will not affect

RoxCoal’s ability to continue in business; and

9. RoxCoal produced 1,515,037 tons of coal in 2009, of which 360,345 tons were

produced at the Kimberly Run Mine and 191,891 tons were produced at the Roytown

Deep Mine.1

Five of the eight citations in dispute and discussed below have been designated by the

Secretary as significant and substantial. A significant and substantial (“S&S”) violation is

described in section 104(d)(1) of the Act as a violation “of such nature as could significantly and

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

30 U.S.C. § 814(d)(1). A violation is properly designated S&S “if, based upon the particular 

33 FMSHRC Page 2304
2

 Twelve of the citations have been settled. The thirteenth citation (Citation No. 7054090)

(continued...)

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 Commission has explained that:

[i]n order to establish that a violation of a mandatory safety

standard is significant and substantial under National Gypsum, the

Secretary of Labor must prove: (1) the underlying violation of a

mandatory safety standard; (2) a discrete safety hazard--that is, a

measure of danger to safety--contributed to by the violation; (3) a

reasonable likelihood that the hazard contributed to will result in

an injury; and (4) a reasonable likelihood that the injury in

question will be of a reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck

Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary,

861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec.

1987) (approving Mathies criteria). 

The difficulty with finding a violation S&S normally comes with the third element of the

Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the

Commission provided additional guidance: We have explained further that the third element of

the Mathies formula “requires that the Secretary establish a reasonable likelihood that the hazard

contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6

FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the

language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a

hazard that must be significant and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866,

1868 (August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

 This evaluation is 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 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 

6 FMSHRC at 1574. 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).

I rely on the state of the law as cited herein considering each issue addressed below and

whether each citation which is alleged to be S&S meets the above noted criteria.

DOCKET NO. PENN 2009-548 - Kimberly Run:

This docket contains fourteen violations assessed a total penalty of $16,021.00. The parties

have resolved thirteen of the violations2

, leaving the following citation for decision.

33 FMSHRC Page 2305
2 (...continued)

involves a lifeline issue, which the parties have requested, and I have agreed, to stay pending the

Commission’s decision in Cumberland Coal Resources LP, 31 FMSHRC 1147 (ALJ) (Sept.

2009). The Commission held oral argument on this matter on March 31, 2011.

3

 Inspector Zeanchock is also a Field Office Supervisor for MSHA. 

4 Exhibit 1.

5 Tr followed by a number indicates pages of the official hearing transcript. The Secretary’s

exhibits are numbered (e.g. Exhibit 1) and the Respondent’s exhibits are denoted by letters (e.g.

Exhibit A).

Citation No. 7054091

On February 24, 2009, Inspector Dennis Zeanchock3

 issued Citation No. 70540914 to

RoxCoal for a violation of 30 C.F.R.§75.351(n)(2) of the Secretary’s regulations. The citation

alleges that:

The mine operator failed to make a proper 7-day functional test for

the alarms of the AMS installed in this mine. An observation was

made of the functional test of sensor F-36, located at the #5

stopping, 300 feet inby the drift mouth, in the primary escapeway. 

The company escort pushed the test button to test the sensor. Gas

was not applied to activate the alarm on the surface. Upon further

conversation with mine management, they stated they never apply

gas to the sensors only during calibration.

This mine uses belt air at the face. This is the first time this

standard has been cited at this mine.

The inspector found that an injury was unlikely to occur, that the violation was not

significant and substantial, that 18 persons would be affected, and that the violation was the

result of moderate negligence on the part of the operator. The Secretary has proposed a civil

penalty in the amount of $745.00.

The citation was terminated when the operator applied calibration gas to the 5 sensors

and the alarm on the surface was activated after each application. 

§75.351(n)(2) requires that alarms on an atmospheric monitoring system (AMS) must be

functionally tested for proper operation at least once every seven (7) days.

 Zeanchock, the MSHA mine inspector, has worked for the Mine Safety and Health

Administration for approximately 8 years and has worked in the mining industry for 30 years.

Tr. 20.5

 He was at the mine for a regular E01 inspection on February 24, 2009. Tr. 20, 22. 

Kimberly Run is a newly developed underground coal mine in Pennsylvania that opened in

33 FMSHRC Page 2306
6

 The CO monitoring equipment was manufactured by Pyott-Boone and is distributed by LogiTec, an exclusive authorized distributor of the equipment. Tr. 61. 

7

 The CO monitoring system was installed at the mine approximately 2-3 months before the

citation was issued. Tr. 65.

8

 §75.1103-8

2008. Tr. 31, 69. When Inspector Zeanchock arrived at the mine, he was accompanied during

the inspection by Jim Mullen, the mine foreman, and another inspector. Tr. 23. 

After reaching the Number Five stopping, Zeanchock spoke with Mullen about the CO

monitors on the AMS and asked him how he performed the seven-day functional test. Tr. 24. 

Mullen demonstrated how the mine performs its seven-day functional tests by pushing a button

on the system. Tr. 24. When Mullen pushed the button, an audible alarmed sounded. Tr. 35. 

Zeanchock then issued a citation for a violation of 30 C.F.R. §75.351(n)(2) which

requires that at least once every seven days, alarms for the AMS “ must be functionally tested for

proper operation”. AMS is an atmospheric monitoring system that tests the atmosphere of the

air underground throughout the mine so that miners can be warned if there is a fire, an explosion

or an accumulation of hazardous gases. Tr. 25. Inspector Zeanchock issued the citation because

RoxCoal did not apply testing gas to any of the sensors in order to perform the functional test.

Tr. 24-25. In his direct and redirect testimony, Inspector Zeanchock stressed that the only

purpose of the seven-day test is to make sure the alarms sound. Tr. 25, 42. And again, on crossexamination, Zeanchock admitted that the only purpose of the seven-day test is to test the

audible alarms and not the CO sensors inside the mine. Tr. 40-41. Zeanchock stated several

times during his testimony that he believed the seven day test should be performed with a known

quantity of carbon monoxide gas because it was a “more adequate test” of the system than

pushing the test button, but finally asserted “that’s just my opinion”. Tr. 49.

David Flick is the Safety Director at the RoxCoal Kimberly Mine and has over 37 years

experience in the mining industry. Tr. 53-58. Mr. Flick testified that the Respondent’s AMS is

an integrated system which connects the CO monitors and alarms to a computer system outside

the mine. Tr. 58-59.6

 The alarms are both audible and visual (flashing lights). Tr. 59. Flick

testified that representatives of Logi-Tec, the distributor from whom Respondent purchased the

equipment, provided initial training to employees on the system7 and subsequently provided a

written letter explaining how to perform the seven-day functional test in accordance with the

manufacturer’s instructions. Tr. 61-62, Exhibit A. Both the training the employees received and

letter describe that pressing the test button on the CO monitors is a complete functional test of

the alarms in the monitoring system in accordance with the manufacturer’s specifications. Tr.

61-63, Exhibit A.

In support of its contention that the Respondent violated §75.351(n)(2), the Secretary

introduced into evidence a rule-making excerpt from the Federal Register concerning another

standard that discusses testing of automatic fire sensor and warning device systems.8

 Exhibit 3. 

The Secretary asserts that I should consider this as it provides guidance on functional testing of

33 FMSHRC Page 2307
9

 Ten of the citations have been settled and one lifeline citation (Citation No. 7055612) will be

stayed pending the Commission’s decision in Cumberland Coal Resources, discussed infra.

10 Exhibit 4

alarm systems in general. Tr. 26-27. Not only is this document not conclusive as to the use of

gas in seven-day functional testing, but I find it inapplicable since it is applicable to a different

standard than the standard alleged to be violated in the citation at issue.

§75.351(n)(2) simply requires a functional test of the AMS alarms every seven days to

insure that the alarms are working and audible. This section does not specify that gas should be

used to conduct the functional test. I contrast this standard with §75.351 (n)(3) which sets forth

that the 31-day calibration test must be performed on every CO sensor in accordance with the

manufacturer’s calibration specifications and with a “known concentration of carbon

monoxide in air sufficient to activate the alarm” (emphasis supplied). There is no such

requirement in §75.351(n)(2). I find that to be significant. Moreover, the purpose of the sevenday test is patently different than the 31-day test. The seven-day test is only to ensure that the

alarms are audible, while the 31-day test is necessary to calibrate all the CO sensors so as to

ensure that the AMS is fully operational. Further, although Inspector Zeanchock testified that it

was his opinion that using gas produced a better functional test result, he failed to explain the

basis for his opinion or explain that there would be any difference in the result by using gas. 

Finally, there is no dispute that the alarms sounded when the test button was pressed and so there

can be no valid contention that a functional test was not completed. Based on the foregoing, I

find that the Secretary has not shown a violation as alleged, and therefore, Citation No. 7054091

is VACATED.

DOCKET NO. PENN 2009-595 – Kimberly Run:

This docket contains twelve violations with a total proposed penalty of $7,945.00. The

parties have resolved eleven of the citations9

, leaving the following citation for decision.

Citation No. 7055614

On April 21, 2009, Inspector Robert M. Snyder issued Citation No. 705561410 to

RoxCoal for a violation of §75.1103-4(a) of the Secretary’s regulations. The citation alleges

that:

The entire 1st Right section belt, 003 MMU, was not being

monitored by an automatic fire sensor and warning device system. 

Upon arrival on the section, the CO monitor was being moved

outby the canvas check at the section loading point. The miner

moving the sensor was asked if this sensor has always been inby

the check and he responded yes. It is being dumped into the return

through a hole in a stopping outby the check. With the sensor

being inby the check, the atmosphere in the belt entry is not being

monitored in its entirety. This belt was in operation prior to the

inspection. Automatic fire sensor and warning device systems shall

33 FMSHRC Page 2308
11 In this section of the mine, there were CO monitors at the head and at the tail of the belt as the

belt line was only about 300 feet in length. Tr. 108.

12 The line canvas extends from rib to rib and acts as a ventilation control, directing belt air

traveling inby to the belt air dumping point and then into the return air which flows outby

leaving the mine. This prevents the inby belt air from traveling to the working face. Tr. 88-92.

13 While the testimony of Inspector Snyder indicates than the mechanic was in the process of

moving the monitor to the outby side of the canvas when they approached, it appears from all of

the evidence that the monitor was likely moved as a result of the abatement process. In this

regard, Snyder testified that the mechanic told him he always placed the monitor inby of the

canvas. Tr. 94. Also the inspector’s notes, at Exhibit 5, clearly show that the mechanic had been

placing the monitor inby for at least several weeks as he thought that was correct and that it was

moved as part of the abatement process which took only 10 minutes from beginning to end. 

Whether the mechanic was already moving the censor when the inspection party approached or

whether he moved it to abate the citation is not material to my determination herein.

provide identification of fire within each belt flight operated by a

belt drive. This is the first time this standard has been cited at this

mine I.D.

The inspector found that a fatal injury was reasonably likely to occur, that the violation was

significant and substantial, that six persons would be affected, and that the violation was the

result of moderate negligence on the part of the operator. The Secretary has proposed a civil

penalty in the amount of $1,944.00.

The citation was terminated when the sensor was moved to the outby side of the check.

§75.1103-4 discusses the minimum requirements for placement of carbon monoxide

sensors for the belt drive, tailpiece and transfer point, specifying the distances involved in the

placement of the sensors.

Inspector Robert Snyder has been an inspector with MSHA for three years and has 17

years of mining experience. Tr. 81-82. On April 21, 2009, Snyder was performing a regular

quarterly E01 inspection of the mine accompanied by his supervisor, Dennis Zeanchock. Tr. 84-

85. After taking care of some preliminary matters, Snyder, Zeanchock and two company safety

representatives, John Datko and Brad Russian, proceeded underground to the first right belt at

the head of the mine, inspecting the length of the belt toward the working section. As Inspector

Snyder and the others were traveling to the first right section belt inby, they measured the belt air

velocity and checked the belt’s general condition. Tr. 87-88. As the party was walking down

the belt line, there were no problems encountered, such as hot rollers or other problems with the

belt and no accumulations of coal. Tr. 111-112. Carbon monoxide (CO) monitors that sound

alarms are required to be placed at the head of the belt line and at least every 350 feet thereafter

along the belt line so as to warn employees of fire or other danger.11 Tr. 95. When they arrived

at the loading point, they saw the section mechanic had the CO monitor on the inby side of the

line canvas,12 rather than the outby side of the canvas. Tr. 88, 93.13 While underground,

Inspector Snyder used chemical smoke to determine the air movement both outby and inby the

33 FMSHRC Page 2309
canvas curtain and in both instances the air was traveling in the right direction. Tr. 90, 92. Both

courses of air were vented and directed to meet at the crosscut. Tr. 91-92. Miners working in

this area and along the belt line and in the travelway wear multi-gas detectors. Tr. 121-122, 142.

When the CO monitor was placed on the inby side of the canvas curtain, the air coming

down the belt would not reach the CO monitor so as to warn of any fire along the belt from the

head to the curtain. Tr. 96. Snyder testified that the greatest danger for a fire is along the belt

line due to rubbing of parts on the belt line. Tr. 98. Snyder also testified that the CO monitor at

the head of the belt would be unable to detect CO if a fire occurred along the belt since the air

flow would be inby away from the monitor at the head. Tr. 99-100, 106. Snyder further testified

that the CO monitor was just inby on the other side of the canvas line toward the working face

and just outby the tail and the feeder and that in such position the monitor could pick up any

problems from the tail or feeder area. Tr. 113. 

Thomas Todd testified on behalf of the Respondent. Mr. Todd is the vice president in

charge of safety for RoxCoal, where he has worked for 2-1/2 years. He has a degree in Mining

Engineering, is a licensed professional engineer and has prior work experience with MSHA

where he worked for over 21 years in positions of increasing responsibility. Tr. 125-127.

Todd testified that, although he was not present during the inspection on April 21, 2009,

he became familiar with the facts surrounding the citation within a few days thereafter. Tr. 128-

130. Todd confirmed that the CO monitor in question was inby the canvas curtain toward the

tail and the feeder. In Todd’s opinion, the CO monitor’s location inby was appropriate because

it was more likely for a fire to occur on the feeder or inby side of the curtain. Tr. 150. This is

particularly so since there were no problems along the belt line from its head to the canvas

curtain. He also testified that if the monitor was on the outby side of the curtain it could still

monitor the air on the inby side coming from the face and area around the feeder as this air

passes through the belt air dumping point on its way to the return air traveling outby. Tr. 150.

In assessing whether the Respondent violated the Secretary’s mandatory standard, I give

weight to Snyder’s testimony that the CO monitor should have been placed on the outby side of

the canvas curtain so that miners could be alerted of fire or other hazards occurring from the belt

head to the curtain. I also credit Todd’s testimony that the placement of the monitor outby

would also warn of problems in the feeder or face areas. I find that the placement of the CO

monitor inby of the curtain violated a mandatory safety standard. Accordingly, I find that the

Secretary has shown a violation as alleged. The negligence associated with this violation is

considered to be moderate since the placement of the monitor inby the curtain had existed for at

least several weeks.

The Commission has long held that a S&S designation must be based on the particular facts

surrounding the violation, and reviewed in the continuing course of mining. Texas Gulf, Id. In

the circumstances herein and after a consideration of all the evidence, I am not convinced that

the violation was S & S. While the Secretary has shown that the first two elements of the

Mathies Coal Co., infra, formula have been met, she has not shown that the third element is

present herein. While there is some likelihood that an injury could occur because of the

misplacement of the CO monitor, she has failed to demonstrate that there is a reasonable

likelihood of injury. In this regard, Inspector Snyder testified that there were no problems noted

33 FMSHRC Page 2310
14 Exhibit 6.

during his inspection of the belt line from the head to the canvas. Thus, there were no problems

with the belt itself, such as rubbing or hot rollers, and significantly there were no accumulations

of coal present. Also, miners working in the area around the canvas and along the belt line and

in the travelway wear multi-gas detectors. While the CO monitor could have been placed in a

more advantageous location, i.e. outby the curtain, this fact does not establish that the third

prong of the Mathies formula has been met. I find, therefore, that the violation of mandatory

standard 75.1103-4(a) was not S & S. Donner Coal Co.,14 FMSHRC 838 (May 1992) (ALJ),

cited by the Secretary in her post-hearing Memorandum is inapposite since in that case the

automatic fire system was not operational so that miners would receive warning in the event of a

fire. Here, there is no contention that the system was not operational.

Based on the above findings as to gravity and negligence and considering all of the factors

set forth in the Mine Act at §110(i), I conclude that the penalty for this violation shall be $436.00

DOCKET NO. PENN 2009-667 – Kimberly Run:

This docket contains ten violations with a total proposed penalty of $6,595.00. The parties

have resolved eight of the citations, leaving the following two citations for decision.

a. Citation No. 7055618

On May 5, 2009, Inspector Robert M. Snyder issued Citation No. 705561814to RoxCoal

for a violation of §75.340(a)(1)(i) of the Secretary’s regulations. The citation alleges that:

The 1st Right 003 section scoop battery charging station did not

have air moving towards the vent pipe in the rear of the charging

station which would course towards the return. When chemical

smoke was applied over the batteries, the smoke traveled towards

the mouth of the crosscut and into the alternate escape way. 

Underground battery charging stations shall be ventilated with

intake air that is coursed into a return air course or to the surface

and that is not used to ventilate working places. The charging

station is located at s/s 285 in the #5 entry. The charger was taken

out of service until it is vented properly. This is the first time that

this standard has been cited at this mine I.D.

The inspector found that a fatal injury was reasonably likely to occur, that the violation was

significant and substantial, that six persons would be affected, and that the violation was the

result of moderate negligence on the part of the operator. The Secretary has proposed a civil

penalty in the amount of $1,944.00. 

The citation was terminated when additional vent pipes were installed in the charging

station so that air flow over the batteries was increased to the return air course.

33 FMSHRC Page 2311
15 A scoop is a battery powered machine used in mines to clean holes, lift material, and transport

materials and supplies. Tr. 168. The batteries that operate the scoop last for about 6-8 hours

before they must be recharged in the battery charging station. Tr. 168-169.

16 Snyder testified that he rated the negligence involved in this citation as moderate because

when the belt air was increased that morning, the Respondent should have followed up to see if

anything else was affected. Tr. 182.

17 There is no contention that Respondent did not have the correct number of CO monitors. Tr.

19.

§75.340(a)(1)(i) provides that underground battery charging stations shall be ‘[v]entilated

with intake air that is coursed into a return air course or to the surface and that is not used to

ventilate working places.”

Inspector Snyder was at the Kimberly Run mine on May 5, 2009, to conduct a quarterly

inspection and during this inspection he was accompanied by RoxCoal safety inspector, John

Datko. Tr. 166. After going underground, Snyder traveled across the faces to check for

imminent dangers, conducted a rock dust survey, and examined several pieces of equipment. Tr.

167. He determined that everything was operating correctly. Tr. 185.

As Inspector Snyder was leaving the area , he stopped to inspect the scoop battery charging

station located in a crosscut off of the travelway.15 Tr. 167, 170. Snyder first inspected the

scoop battery charger and concluded that it was operating correctly. Tr.171. He then inspected

the set of batteries being charged by puffing chemical smoke over the top of the batteries,

simulating the direction of the hydrogen sulfide gas emitted by the charging batteries. Tr. 171. 

The chemical smoke is supposed to travel to the vent pipes in the rear wall of the charging

station which, in turn, courses towards the return air course. Tr. 172-173. This is designed to

prevent the gas emitted by the batteries from flowing inby and mixing with the intake air on the

travelway. Tr. 173-174. Although there are CO monitors in the beltway, there are none in the

travelway, presenting a hazard if a charging battery catches on fire and the smoke flows into the

travelway. Tr. 176. Snyder noted in his testimony that the vent pipes had strands of ribbons, or

streamers, attached to them so that air flow to the pipes could be detected and there was some

movement of the ribbons, indicating some air flow through the pipes. Tr. 178, 188-189. Snyder

opined that the reason the gas coming off the batteries being charged was moving toward the

travelway as indicated by the chemical smoke and not out the vent pipes was because the

Respondent had increased the air flow down the beltway that morning. Tr. 181-182, 189-190.16

On cross-examination, Snyder testified that any air from the charging station that went into

the travelway or the belt line would be coursed to the return and would not reach the working

face. Tr. 185-187, 193. He also testified that CO monitors in the area would pick up any gas

emitted by the batteries. Tr. 187-188. 17

Inspector Snyder testified that he considered the situation in the charging station to be

violative because the gas coming off the batteries was not going to the return air course but

instead into the travelway. He further testified that he believed the violation to be S & S because

33 FMSHRC Page 2312
18 Inspector Snyder’s testimony regarding the location of the battery charging station was

tentative and incorrect. Hence it is not relied upon.

the charging station is unattended during the shift and if a fire occurs in the charging station, the

CO monitors would have to be relied upon to detect the gas from the station going down the

travelway. Tr. 184.

Bradley Russian, a safety specialist employed by Respondent at Kimberly Run who has

about 9 years of mining experience, testified at the hearing and was able to locate the battery

charging station on the two mine maps that were put into evidence. Tr. 207-213, Exhibits B and

C.18 The location of the station is marked as “CS” on both exhibits. Russian testified that on the

day the citation was issued if any air from the charging station flowed into the travelway, it

would have been directed immediately around the crosscut and into the return course and would

not have gone to the working face. Tr. 211-212. Finally, he testified that the distance from the

charging station entrance to the nearest CO monitor was approximately 60-80 feet. Tr. 220, 

226.

Respondent argues that there is no violation because the cited regulation does not require

that the air from the charging station go directly to the return and that the air cannot go to the

working face.

In consideration of all of the evidence, I find that the Secretary has established a violation

of §75.340(a)(1)(i). When the Respondent increased the air flow down the belt line on the

morning of the inspection, that action had the consequence of changing the air flow patterns in

the battery charging station such that some (but not all) of the air migrated to the travelway. 

Although Respondent contends that such air went to the return and not to the working face, I

note that the regulation states that the air from the battery charging station not be used to

ventilate “working places”. In New Warwick Mining Co., 16 FMSHRC 2451 (December 1994)

(ALJ), Judge Amchan gave a broad meaning to “working place” and found that the standard

would be seriously undercut if he were to interpret the standard in its strict sense. His rationale

for doing so was based on the intent of the standard which is to protect miners if a fire originates

at a battery charging station. Id. at 2463. In the instant case, I find that miners who happened to

be in the crosscut or travelway could be exposed to gases that emanated from the battery

charging station for at least the 60-80 feet that it would take such air to reach the nearest CO

monitor. Such an area, although small, constitutes a “working place.” Accordingly, I find that

the Secretary has shown a violation as alleged.

However, I find that the violation was not S & S as the likelihood of an event or fire

occurring would be remote at best. The charging station was in close proximity to the CO

monitor, the battery charging unit was operating correctly, any bad air in the travelway was

coursed rather quickly to the return, and any bad air would have been in a very small area before

reaching the return and would not have gone to the working face. As to negligence, I find that

the negligence is “low” given that the violation existed for only a few hours before it was

discovered, that the air flow in the battery charging station was apparently changed as a result of

an increase in velocity of the belt line air that morning and that Respondent quickly took steps to

correct the situation by installing additional vent pipes to the return.

33 FMSHRC Page 2313
19 Exhibit 8.

Given the above findings, I assess a penalty of $196.00.

b. Citation No. 7055373 

On May 19, 2009, Inspector Daniel Mansell issued Citation No.705537319 to RoxCoal for

a violation of Section 75.370(a)(1) of the Secretary’s regulations. The citation alleges that:

The operator shall develop and follow a ventilation plan approved

by the district manager. The plan shall be designed to control

methane and respirable dust and shall be suitable to the conditions

and mining system at the mine.

The operator failed to follow the approved roof control plan

(80086-B-2AZ) page 27 item 8. The line canvas installed to

ventilate the unbolted face of No. 7 entry in the B Mains Right

Side section (mmu 002-0) was not extended to the last row of

permanent supports as required by the approved plan. This is the

sixth violation issued at this mine for this standard.

The inspector found that a fatal injury was unlikely to occur, that the violation was not

significant and substantial, that 16 persons would be affected, and that the violation was the

result of moderate negligence on the part of the operator. The Secretary has proposed a civil

penalty in the amount of $745.00.

The citation was terminated 10 minutes later when the line curtain was extended the

required distance to the last row of permanent supports.

Inspector Mansell has been a field office supervisor for MSHA since December 2010 and

prior to that was employed as an MSHA inspector for six years. Tr. 239. He has worked in the

mining industry for 38 years. (TR 239-240). Mansell was at the Kimberly Run mine on May 19,

2009 to conduct a regular E01 inspection along with a special respirable dust inspection. Tr.

241-243. 

Inspector Mansell proceeded to check for imminent dangers on the active working faces; no

imminent dangers were found. Tr. 244-245. However, he discovered that the line canvas

installed on the face of the Number Seven entry, in the B Mains right side section, did not extend

to the last row of permanent roof supports. Tr. 245, 259. The canvas was approximately eight

feet short of reaching the last row of supports. Tr. 253.

Mansell issued a citation for a violation of 30 C.F.R. § 75.370(a)(1), which requires that the

operator develop and follow a ventilation plan approved by the district manager. Tr. 247. The

Respondent’s plan provides, inter alia, that “The line brattice shall be installed to the last row of

roof bolts after mining operations have been completed in each working place, except when

methane liberations require it to be kept closer”. Ex. 10. Mansell credibly testified that the

operator failed to comply with the pre-approved ventilation plan, which requires that the line

33 FMSHRC Page 2314
20 Two of the citations have settled and two of the citations (Citation Nos. 7055173 and

7055175) involve lifeline issues and will be stayed pending the Commission’s decision in

Cumberland Coal Resources, discussed infra.

21 Exhibit 14.

curtain be extended to the last row of permanent supports so as to ensure that the mined-out area

of the face is adequately ventilated and that there is not exposure to rock dust or noxious gases. 

Tr. 245-246, 249.

Inspector Mansell testified that since there was no history of methane in the mine, it was

unlikely that an event would occur but if an event occurred the result would be fatal. Tr. 249. 

Although he believed 16 miners would be affected since that was the number working inby the

loading point, he could not specify where this number would have been since they were moving

“back and forth”. Tr. 250. Finally, he testified that he considered the negligence to have been

moderate since the condition existed since late in the afternoon the previous day. Tr. 250. On

cross-examination, Mansell admitted that, before energizing the equipment in the Number Seven

entry, the Regulations require that an individual administer a methane test before any miners

started working in the area. Tr. 255-256.

RoxCoal admits to a violation of § 75.370(a)(1). Tr. 262. However, it asserts that the

violation is de minimus and the $745 penalty sought by the Secretary is not appropriate. (Tr.

262). However, this is not a credible argument. If this were a violation of the Occupational

Safety and Health Act, I could consider this argument. However, the Mine Act is a strict

liability statute, and as such, the concept of a de minimus violation does not exist.

The operator failed to follow the ventilation plan approved by the district manager when

it neglected to ensure the line curtain extended to the last row of permanent supports. 

Accordingly, I find that the Secretary has shown a violation as alleged. In considering the

criteria for the penalty assessment, i.e. gravity and negligence, I find that appropriate penalty is

$300.00

DOCKET NO. PENN 2010-31 – Roytown Deep Mine:

This docket contains seven violations assessed a total penalty of $8,895.00. The parties

have resolved four of the violations20, leaving the following three citations for decision.

a. Citation No. 7055172

On July 13, 2009, Inspector Richard A. Tronzo issued Citation No. 705517221 to

RoxCoal for a violation of Section 75.400 of the Secretary’s regulations. The citation alleges

that:

Coal dust, including float coal dust deposited on rock-dusted

surfaces, loose coal, and other combustible materials, shall be

cleaned up and not permitted to accumulate in active workings, or

on diesel-powered and electric equipment. Dry coal and coal dust

33 FMSHRC Page 2315
was allowed to accumulate in the cable reel compartment of the

Co.#4 Fletcher roof bolter (SN 2004137) located in the 3 Mains

working section. These accumulations were in contact with the

cable stored on the reel and measured up to 6” in depth. There was

also an oil leak that allowed oil to accumulate on the machine in an

area just behind the helpers side drill head hinge point.

The inspector found that an injury was reasonably likely to occur, that the violation was

significant and substantial, that two persons would be affected, and that the violation was the

result of moderate negligence on the part of the operator. The Secretary has proposed a civil

penalty in the amount of $807.00.

The citation was terminated when all the machine covers were removed and the bolter

was cleaned of all accumulations.

Tronzo began working for MSHA in March 2007 and has been a general inspector out of

the Johnstown, Pennsylvania field office for over four years. Tr. 381, 383. Prior to coming to

MSHA, he was employed at the Beth Energy Mines for nineteen years, where he was a Mine

Health and Safety Committeeman who conducted inspections and traveled with visiting MSHA

and State inspectors during their inspections as well as a fourteen year member of the mine

rescue team. Tr. 381-382. Later, he worked as the Safety Coordinator for Laurel Sand &

Gravel. Tr. 382. Tronzo was at the Roytown Deep Mine on July 13, 2009, conducting an EO1

inspection and was accompanied by RoxCoal employees John Shander and Robert Depetro. Tr.

383-384. 

Tronzo began by inspecting the working face area and proceeded to examine the roof

bolter, which was located in a muddy, wet section. Tr. 384-385, 389. Before he even reached

the roof bolter, he observed oil accumulations on the helper side of the bolter at the hinge point. 

Tr. 385. He determined that a loose hose fitting had allowed the oil to seep down through the

machine, coming to rest on the machine’s surface. Tr. 385-386, 420. Tronzo testified that the

base of the right side drill assembly was covered with oil accumulation, but he did not take any

measurements of the thickness of the oil or the area covered, although he noted that the entire

drift head was covered. Tr. 409-410. 

While examining the rest of the bolter, Tronzo took the cover off the top of the cable reel

and discovered an accumulation that was up to six inches deep of compressed, dry material at the

bottom of the compartment. Tr. 386, Exhibits 14 and 15. He testified that the accumulated

material was so compacted that, in his opinion, it must have been there for several shifts. Tr.

396. He believed the accumulated material was coal, coal fines and granular coal because there

were visible pieces of coal in it, but he did not sample the material to confirm its contents. Tr.

386, 402, 411, 414. On cross-examination, Tronzo admitted that it is possible that the

accumulation was comprised of the wet, sloppy material from the bottom of the mine that stuck

to the cable, was transported into the compartment, and subsequently dried and hardened. Tr.

407-408. 

Tronzo’s main concern was that the cable and reel were hot enough to dry the

accumulation and both were rubbing into the accumulation, leaving visible marks. Tr. 386, 389.

33 FMSHRC Page 2316
Within the cable reel itself, Tronzo observed float coal dust which is flammable and explosive. 

Tr. 411-412. He notified Shander and Depetro of the accumulation of material and they took the

necessary steps to clean up the equipment. Tr. 387. 

Tronzo issued a citation for a violation of 30 C.F.R. § 75.400, which requires 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.” He testified that the bolter is

electrical equipment and, where there is electrical equipment, there is always the potential for

fire. Tr. 387. Although he testified that he issues a lot of citations for cut cables, at the time of

inspection, there were no apparent cuts or bad spots on the bolter’s cable. Tr. 404.

Upon further inspection of the bolter, Tronzo discovered that a piece of conveyer belt

was installed in the cable reel compartment on top of the fire suppression nozzle in such a way

as it blocked the fire suppression line. Tr. 388. In the event of a fire, the spray of the fire

suppression system could not effectively hit the entire compartment. Tr. 398-399. He further

speculated that the piece of the conveyer belt was likely installed to prevent the oil accumulating

on the machine from getting into the cable reel area, indicating that the roof bolter operator was

aware of the oil accumulation. Tr. 391-392. Shander testified that the piece of belt was placed

over the hole in the top of the machine to prevent material from falling through the hole, but

admitted that it was not standard equipment for the machine. Tr. 430-431. 

Tronzo testified that, if a fire were to break out, it would be to the back of the miners

working in that area and they would not be aware of the fire until they smelled it. Tr. 390.

Because the miners would be ahead of the fire, the extent of injury would depend upon how

quickly the miners became aware of the fire. Tr. 391. The injuries sustained could range from

injuries from smoke inhalation and burns if they noticed the fire quickly and were able to get out

to fatality if they became trapped. Tr. 391.

The Inspector described this as significant and substantial because the machine is

operating on a daily basis, the oil accumulation was obvious, and someone installed a piece of

conveyer belt to keep the oil out of the compartment, indicating that the roof bolter operator

must have been aware of the potential of fire. Tr. 391-392. 

The operator failed to prevent float coal dust, loose coal, and oil from accumulating on

and within a piece of equipment in an active working section. Accordingly, I find that the

Secretary has shown a violation as alleged.

I also find that the violation of this standard is S & S. First, it is obvious that Respondent

has violated a mandatory safety standard. The oil accumulation was visible from a distance and

the compacted coal accumulation within the bolter had likely existed for several shifts. Second,

this violation could contribute to the hazard of a fire if an ignition source presented itself. Third,

there existed a reasonable likelihood that this could occur because the cable “would be hot

enough that it would burn my hands.” Tr. 389. It is reasonable that the friction of the cable

against the coal could generate enough heat to ignite the coal float that existed on the cable itself,

later igniting the coal accumulation and, eventually, the oil accumulation on the machine. 

Because the miners on the section would be inby any fire that occurred, it is likely that they

33 FMSHRC Page 2317
22 Exhibit 16.

would not notice it until there was the potential for them to, at least, suffer from smoke

inhalation or minor burns and, at worst, to be fatally trapped by the fire. 

This evaluation is made in consideration of the amount of time that the violative

condition existed prior to the issuance of the citation and the time it would have existed if normal

mining operations had continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec 2005); U.S.

Steel Mining Co., Inc., 6 FMSHRC at 1574. Tronzo credibly testified that the accumulation

inside the compartment of the bolter likely existed for several shifts. There was no evidence at

the hearing to suggest that the accumulation would have been found if Respondent had been

given a little more time, as the area was only required to be checked once a week. Tr. 437.

Given the above findings and conclusions, I find that the assessment of $807.00 is reasonable

under the circumstances. 

b. Citation No. 7055178

On July 21, 2009, Inspector Richard A. Tronzo issued Citation No. 705517822 to

RoxCoal for a violation of Section 75.503 of the Secretary’s regulations. The citation alleges

that:

The 3 Mains section continuous miner DBT-25M-0 9 (S/N

125666, MMU-003-0) was not being maintained in a fully

permissible condition. The area light located at the operators side

rear of the miner was loose. Also a[n] electric cable that was

marked “Fire Spray Solenoid” that is located behind the main

control panel had a one inch cut in it that exposed the inner

conductors of the 115 volt cable, the inner black cable had a 1⁄4

inch cut in it that exposed the inner copper conductor, an opening

in excess of .004 of an inch was found on the junction box panel

lid, this is the point where the trailing cable enters the miner. 

There has (sic) been nine citations issued for violations of 75.503

at this mine in the past two years.

The inspector found that an injury was reasonably likely to occur, that the violation was

significant and substantial, that one person would be affected, and that the violation was the

result of moderate negligence on the part of the operator. The Secretary has proposed a civil

penalty in the amount of $1,026.00.

The citation was terminated later that day after the bolts were tightened on the light, a new

solenoid wire was installed, and the panel cover was cleaned and reinstalled. 

Tronzo inspected the continuous miner, which was new to the mine, in the Three Main

section. Tr. 447, 449. This miner had recently been rebuilt and had only been in operation for a

few days. Tr. 449. When Tronzo arrived, the miner was locked out and tagged out as the scoop

33 FMSHRC Page 2318
23 A scoop jack is located on the bottom of a continuous miner. As the coal is cut, it goes onto the

scoop where a conveyer chain pulls the coal back to load it up to the miner. Tr. 447. 

jack23 on the miner was being repaired; however, he proceeded with his examination in spite of

this fact. Tr. 447, 458. 

During the inspection, Tronzo discovered that the bolts holding an area light located on the

operator side rear of the miner were loose, causing the light to shake during operation. Tr. 448.

He testified that if the bolts came off, the light would slide out, possibly breaking, damaging the

cable, or hitting a person. Tr. 448, 462-464, 477. Shander tightened the light, abating the

condition. Tr. 455.

Tronzo next examined a fire spray solenoid cable that was part of the fire suppression

system on the miner. Tr. 448. The outer jack of the cable was damaged and there was a quarterinch cut in the inner cable, exposing the copper wiring. Tr. 449. There was no contact between

the damaged cable and any metal surface and, further, the wire suppression was still operational,

even with the damaged cable. Tr. 465, 470. Shander took the damaged solenoid cable off and

sent outside for a new one, abating this condition. Tr. 455.

Continuing with the inspection, Tronzo examined the junction box panel lid on the operator

side of the miner where the main power cable is fed into the miner itself. Tr. 450. He ran a

feeler gauge around the panel, looking for openings that would allow a flame path and informed

Shander that one was present. Tr. 450. An opening in the panel creates a flame path and could

lead to an explosion if methane or other gases are present. Tr. 451. Shander responded by

removing the panel cover, cleaning it, and reinstalling it properly. Tr. 455. 

Tronzo issued a citation for a violation of 30 C.F.R. § 75.503, which requires “[t]he

operator of each coal mine [to] maintain in permissible condition all electric face equipment

required by §§ 75.500, 75.501, 75.504 to be permissible which is taken into or used inby the last

open crosscut of any such mine.” Permissibility, in the context of Section 75.503, means

maintaining the machine in a condition in which it can be operated in a methane environment. 

Tr. 452. Tronzo testified that each condition individually is a violation of Section § 75.503. Tr.

451. 

John Shander credibly testified that the continuous miner in question was “locked and

tagged out” when he and Tronzo came upon the miner. Tr. 482. Shander and Tronzo both

testified that the three items Tronzo raised in the citation were repaired by 10:30 am and the

citation was terminated, but the equipment was not immediately put back into service as the

Respondent was still performing various work on the miner. Tr. 509-510. 

While maintaining equipment in permissible condition is of utmost importance, the Commission

has ruled that equipment that is locked out and tagged out can avoid inspection. In Allen Lee

Good, it states that as long as the equipment is not tagged out and parked for repairs, the code

sections applies whether or not the equipment is to be used during the shift. 23 FMSHRC 995,

997 (Sept. 2001). Another Commission decision determined that equipment was “used” within

the meaning of the standard at issue because it was located in the normal work area, was capable

of being used and was not removed from service. Ideal Basic Industries, Cement Div., 3

FMHRC 843 (Apr. 1981). Administrative Law Judge Michael Zielinski also used this

33 FMSHRC Page 2319
24 Exhibit 18.

“availability for use” test eloquently in an unpublished decision LTM Incorporated-Knife River

Materials where he explained that this test governs the applicability of most safety standards to

mobile equipment. 2011 WL 2170808, pg 2 (2011)(ALJ). “Only if the equipment had been

effectively taken out of service, e.g., locked out and tagged out, can such equipment avoid

inspection and the citation of conditions that violate safety standards. Id. 

Here, the continuous miner was locked out and tagged out, even by the admission of the

inspector. Tr. 458. While Tronzo testified that he believed that Respondent would have put the

miner back to work immediately after the scoop repair and without fixing the other conditions,

there is no evidence to suggest that this is the case. Tr. 452-453. He did testify that one miner

asked how long he was going to keep the miner down, but he did not testify that it was anyone in

charge of making that decision. Tr. 474. Further, Shander testified that repairing the scoop was

just one of various things being done to the miner. Tr. 483. Based on the foregoing, I find that

the Secretary has not shown a violation as alleged, and therefore, Citation No. 7055178 is

VACATED.

c. Citation No. 7055179

On July 29, 2009, Inspector Richard A. Tronzo issued Citation No. 705517924 to

RoxCoal for a violation of Section 75.333(c)(2) of the Secretary’s regulations. The citation

alleges that:

The location of a personnel door was not marked. The personnel

door located in the cross cut between the #2 entry (return) and the

#3 entry (common entry with the belt #4 entry and the alternated

(sic) escapeway #5 entry) was not marked in the #3 entry. The

location of all personnel doors in stoppings along escapeways shall

be clearly marked so that the doors may easily be identified by

anyone traveling in the escapeway and in the entries on either side

of the door. This door is located at SS 1172 in #3 entry. Ten

miners were working inby this location. There has been two

citations issued at this mine for violations of 75.333(c)(2) at this

mine in the past two years.

The inspector found that an injury was unlikely to occur, that the violation was not

significant and substantial, that ten persons would be affected, and that the violation was the

result of moderate negligence on the part of the operator. The Secretary has proposed a civil

penalty in the amount of $807.00. 

The citation was terminated later that day after the personnel door was marked. 

On July 29, 2009, Tronzo traveled the number three entry, where he observed that the

personnel door at survey station 1172 in the crosscut between the Number 2 and Number 3

entries was not marked. Tr. 514, 516. The door, which had a sign with reflective tape on it that

measured approximately 18 x 12 inches, is twenty feet back from the entryway. Tr. 521, 545,

33 FMSHRC Page 2320
25 Exhibit 11.

548, 558. Respondent typically hangs six-inch tubes with red and white reflective tape in

entryways so that miners may quickly identify escapeways; however, there was not a reflector in

this particular entryway. Tr. 521, 548-549. The location of this entryway is important for

escape purposes in the event of an emergency. Tr. 515, 517-519. If a miner is crawling down

that entry, the reflective material on the tubing is in his or her direct line of sight. Tr. 523. 

The personnel door referenced by the citation is not the designated escapeway. Tr. 527. 

Miners using this escapeway would have to crawl either under or through the belt in order to

enter it. Tr. 527. The area is traveled by only the miner examiner on a weekly basis, as no work

is being done on this section. Tr. 519. 

Tronzo issued a citation for a violation of 30 C.F.R. § 75.333(c)(2), which requires “[t]he

location of all personnel doors in stoppings along escapeways shall be clearly marked so that the

doors may be easily identified by anyone traveling in the escapeway and in the entries on either

side of the doors.”

The Secretary has shown that a violation of a mandatory safety regulation exists. 

Although Respondent argues that this particular personnel door is not the designated escapeway,

it is still an escapeway that may need to be utilized if specific circumstances arise. The

regulation at issue does not delineate among those escapeways identified as primary and

alternate and neither will I. Further, if weekly examinations were regularly occurring, this

condition should have been identified and corrected. Therefore, the Secretary has proven a

violation of the standard as well as moderate negligence on the part of the operator.

However, I do not agree that ten miners would have been affected by this condition. The

section is not a working section and Tronzo himself testified that the only person regularly in

this area is the weekly examiner. Further, I do not find the statement “if a disaster happens, you

never know where people will end up” to be compelling evidence in determining the number of

people that will be affected by a condition. Tr. 520. I find that it is more likely that at most four

people would be affected if an event occurred. This would include the examiner who happened

to be in the area as well as a team of up to three miners sent to rescue him.

Given the above findings, I assess a penalty of $309.00.

DOCKET NO. PENN 2010-310 – Roytown Deep Mine:

This docket contains four violations with a total proposed penalty of $7,932.00. The parties

have agreed to settle all but one of the violations which is addressed below.

Citation No. 7056027 

On November 10, 2009 Inspector Paul P. Pelesky issued Citation No. 705602725 to

RoxCoal for a violation of Section 75.370(a)(1) of the Secretary’s regulations. The citation

alleges that:

33 FMSHRC Page 2321
26 A scrubber is a vacuum-like system that draws in air from the mine containing dust particles,

filters the air, and disposes of it. Tr. 271.

Line 13(f) on page 11 of the approved ventilation plan was found

not being complied with. Line 13(f) requires that a full traverse air

reading be taken weekly to determine the scrubber system’s

efficiency. If this reading is less than 95% of the rated capacity of

the scrubber, appropriate action will be taken to attain the rated

capacity. In review of records a test was conducted on 10/20/2009

of the DBT 25M-0 continuous miner’s scrubber system serial

number 125666, being operated in the south east Mains section,

MMU 003-0. The test resulted in the scrubber producing 3,578

CFM. The rated capacity of the system was determined to be

3,808 CFM and 95% of the capacity would have been 3,618. 

Records of corrective actions could not be produced for review.

The inspector found that an injury was reasonably likely to occur, that the violation was

significant and substantial, that seven persons would be affected, and that the violation was the

result of moderate negligence on the part of the operator. The Secretary has proposed a civil

penalty in the amount of $2,678.00.

The citation was terminated when all persons involved with traverse readings were trained

or re-trained in the proper procedure for conducting these tests, which training was recorded and

available for review.

Prior to his employment with MSHA, Paul Pelesky worked in the coal mining industry for

35 years. Tr. 266. While working in the industry, he was certified as an Assistant Mine

Foreman in Pennsylvania and worked as a safety director for three years. Tr. 266. Pelesky has

worked for the MSHA for over 12 years, working as a coal mine inspector for six years and as a

health specialist for the last three years. Tr. 264-265. Inspector Pelesky was at the Roytown

Deep Mine collecting respirable dust samples for an EO1 inspection on November 10, 2009. Tr.

267, 269). The Roytown mine has a history of high quartz and silica being generated from the

mine which presents a risk for black lung. Tr. 276. Thus, it is important to monitor and control

this in the ventilation plan. The pertinent portion of RoxCoal’s ventilation plan was placed into

evidence as Exhibit 13.

On the date in question, Inspector Pelesky first conducted an imminent danger examination

and then conducted a dust control parameter examination of the continuous miner to ensure that

the dust control parameters on the miner are in compliance with the ventilation plan. Tr. 269. 

Although Pelesky began the process of taking traverse readings of the scrubber system of the

miner; he was unable to complete the task inasmuch as the operator decided to change the motor

on the scrubber.26 Tr. 269-272.

Because Inspector Pelesky could not continue the dust survey underground, he returned to

the surface to review the operator’s records of the weekly traverse readings. Tr. 272-273. While

33 FMSHRC Page 2322
27 Traverse readings are taken using a Pitot tube manufactured by Dwyer Instruments, which

manufacturer permits a two (2) % variation in accuracy of the readings. Tr. 292-293:, Exhibit F,

page 3)

28 The rated capacity of the scrubber in question is 3,803 CFM. (Exhibit13, section 3) 95 % of

that capacity, allowed by the ventilation plan, is 3613 CFM.

reviewing these records, he discovered that the traverse reading27 taken on October 3, 2009, was

3578 CFM, or 94 percent, less than the 95 percent of the rated capacity of the scrubber system

required by the operator’s ventilation plan.28 Tr. 273, 292. Pelesky issued a citation for a

violation of §75.370(a)(1), which requires that the operator develop and follow a ventilation plan

approved by the district manager. The operator’s ventilation plan, at section 13(f), requires that:

A full traverse air reading will be taken weekly to determine scrubber efficiency. 

If this reading is less than 95% of rated capacity of the scrubber, appropriate

action will be taken to attain the rated capacity. A record of this reading shall be

maintained.

Pelesky testified a rating of less than 95% results in an increase of respirable dust inhaled

by the miner. Tr. 286. He further testified that a number of conditions could cause a traverse

reading to be close to, but below, the 95 % percent marker, including a dirty filter on the

scrubber. Tr. 296. On cross examination, Pelesky testified that section 13(f) of the ventilation

plan requires RoxCoal to take a weekly traverse air reading, to record the result and to take

appropriate action if the reading is less than 95 %, but that the plan does not require the operator

to record what corrective action was taken. Tr. 296, 298. Further, Pelesky testified that he did

not know what, if any, action RoxCoal took to correct the reading. Tr. 273, 294, 297. On

November 10, 2009, when Pelesky asked RoxCoal manager John Shandor whether corrective

action was taken on October 3, Shandor was unsure but indicated that whoever recorded the

figure may have overlooked that it was not in compliance. Tr. 275-276.

Records submitted by RoxCoal show that on October 3, 2009, the day the traverse air

reading was below 95 %, the Respondent serviced the scrubber on the miner by changing filters

on the sprays. Exhibit D. Although the motor on the scrubber was changed on November 10,

the date of Pelesky’s inspection, the weekly traverse readings taken after October 3 were all in

compliance with the 95 % capacity requirement. Tr. 274, 288-289. In fact, the operator took

another traverse reading on October 6 even though it was not required to do so until October 10,

which reading was 4050 CFM, or 106 percent of the rated capacity, well over the level required

by the ventilation plan. Tr. 307-308; Exhibit E.

§75.370(a)(1) requires that the operator develop and follow a ventilation plan approved by

the district manager. The ventilation plan at the Roytown mine requires that the operator

conduct a weekly full traverse reading of the scrubber system, and record the test results. The

ventilation plan does not require that the operator record the action taken to correct an

inadequate capacity rating. It simply requires that the corrective action be taken. Moreover, the

evidence shows that corrective action was taken subsequent to the October 3, 2009, reading. This

is evidenced by the traverse reading taken on October 6, 2009, and the subsequent weekly

33 FMSHRC Page 2323
readings, all of which were in compliance. Based on the foregoing, I find that the Secretary has

not shown a violation as alleged, and therefore, Citation No. 7056027 is VACATED.

II. 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) and 820(a). Thus, when an operator notifies the Secretary

that it intends to challenge a penalty, the Secretary petitions the Commission to assess the

penalty. 29 C.F.R. 2700.28. The Act requires, that in assessing civil monetary penalties, the

Commission and its judges shall consider the six statutory penalty criteria, found at Section

110(i) of the Act:

[1] the operator’s history of previous violations, [2] the appropriateness of such

penalty to the size of the business of the operator charged, [3] whether the

operator was negligent, [4] the effect on the operator’s ability to continue in

business, [5] the gravity of the violation, and [6] the demonstrated good faith of

the person charged in attempting to achieve rapid compliance after notification of

a violation. 

I accept the stipulation of the parties that the penalties proposed are appropriate to this

operator’s size and ability to continue in business and that the violations were abated in good

faith. The history shows the past violations at this mine, including citations for the standards

discussed above. The size of the operator is large. I have discussed the negligence and gravity

associated with each citation above and I accept the designations as modified above. I assess the

following penalties:

Citation No. 7054091 Vacated

Citation No. 7055614 $436.00

Citation No. 7055618 $196.00

Citation No. 7055373 $300.00

Citation No. 7055172 $807.00

Citation No. 7055178 Vacated

Citation No. 7055179 $309.00

Citation No. 7056027 Vacated

Total: $2,048.00

As previously noted, the parties have settled or agreed to stay the remaining citations and

orders contained in these dockets. A list of the citations and the proposed resolutions, and their

amendments is set forth below:

33 FMSHRC Page 2324
Docket No. PENN 2009-548:

CITATION

NO.

VIOLATION GRAVITY NEGLIGENCE PENALTY

ASSESSED

SETTLEMENT/

RATIONALE

7055447 104(a); 30 CFR

75.1714-3(d)

Non S&S, fatal, 1

miner.

Moderate $190.00 Modified from

moderate negligence

to low negligence

with a negotiated

penalty of $150.

*Respondent could

produce evidence

tending to

demonstrate a

reduced level of

negligence.

7054082 104(a); 30 CFR

72.630(b)

S&S, permanently

disabling, 2 miners

Moderate $460.00 Remains as issued,

$460.00.

7054086 104(a); 30 CFR

75.1501(c)

S&S; fatal; 19

miners

Moderate $3,689.00 Reduction in penalty

to $2,750.00. No

change to the

violation designation.

*Respondent could

produce evidence

tending to

demonstrate that

even though the

negligence was

moderate, it was not

as high as originally

thought. Based on

this information and

due to the risks of

litigation, the parties

agreed to the

negotiated penalty.

33 FMSHRC Page 2325
CITATION

NO.

VIOLATION GRAVITY NEGLIGENCE PENALTY

ASSESSED

SETTLEMENT/

RATIONALE

7054088 104(a); 30 CFR

75.811 

S&S; fatal; 1 miner Moderate $946.00 Reduction in penalty

to $900.00. No

change to the

violation designation.

*Respondent could

produce evidence

tending to

demonstrate that

even though the

negligence was

moderate, it was not

as high as originally

thought. Based on

this information and

due to the risks of

litigation, the parties

agreed to the

negotiated penalty.

7054089 104(a); 30 CFR

75.1505(b)

Non S&S; Fatal; 16

miners

Low $243.00 Remains as issued,

$243.00. 

7054090 104(a); 30 CFR

75.380(d)(7)(iv)

S&S; Fatal; 18

miners 

Moderate $3,689.00 The parties have

agreed to request a

STAY.

7054092 104(a); 30 CFR

75.380(d)(1)

S&S; Lost

Workdays/Restricted

Duty; 18 miners

Moderate $1,111.00 Reduced to 6 persons

affected with a

modified penalty of

$750.00

*Respondent could

present evidence

tending to show a

reduced number of

miners affected.

7054094 104(a); 30 CFR

75.400

Non-S&S; Fatal; 16

miners

Moderate $745.00 Modified from

moderate negligence

to low negligence

with a negotiated

penalty of $700.00

*Respondent could

produce evidence

tending to

demonstrate a

reduced level of

negligence.

33 FMSHRC Page 2326
CITATION

NO.

VIOLATION GRAVITY NEGLIGENCE PENALTY

ASSESSED

SETTLEMENT/

RATIONALE

7054098 104(a); 30 CFR

75.900-3

Non-S&S; Fatal; 8

miners

Moderate $540.00 Modified from

moderate negligence

to low negligence

with a negotiated

penalty of $490.00

*Respondent could

produce evidence

tending to

demonstrate a

reduced level of

negligence.

7055141 104(a); 30 CFR

77.592

S&S; Fatal; 1 miner Moderate $946.00 Modified from

moderate negligence

to low negligence

with a negotiated

penalty of $875.00

*Respondent could

produce evidence

tending to

demonstrate a

reduced level of

negligence.

7054584 104(a); 30 CFR

75.220(a)(1)

S&S; Fatal; 2 miners Moderate $1,026.00 Reduction in penalty

to $950.00. No

change to the

violation designation.

*Respondent could

produce evidence

tending to

demonstrate that

even though the

negligence was

moderate, it was not

as high as originally

thought. Based on

this information and

due to the risks of

litigation, the parties

agreed to the

negotiated penalty.

33 FMSHRC Page 2327
CITATION

NO.

VIOLATION GRAVITY NEGLIGENCE PENALTY

ASSESSED

SETTLEMENT/

RATIONALE

7054725 104(a); 30 CFR

75.523-2(c)

S&S; Fatal; 1 miner Moderate $946.00 Modified from

moderate negligence

to low negligence

with a negotiated

penalty of $900.00

*Respondent could

produce evidence

tending to

demonstrate a

reduced level of

negligence.

7055601 104(a); 30 CFR

75.221(a)(12)

Non-S&S; Fatal; 12

miners

Moderate $745.00 No likelihood, 0

persons, No lost

workdays, $100.00

*Respondent could

produce evidence

tending to

demonstrate a

reduced level of

likelihood and a

lowered level of

injury that would not

affect any miners.

Total $15,276.00 13 citations,

$9,268.00 as

modified and

stayed

Docket No. PENN 2009-595:

CITATION

NO.

VIOLATION GRAVITY NEGLIGENCE PENALTY

ASSESSED

SETTLEMENT/

RATIONALE

7055604 104(a); 30 CFR

75.220(a)(1)

Non-S&S, Fatal, 6

miners.

Moderate $392 Reduced to 1 person

affected with a

negotiated penalty of

$100.

*Respondent could

present evidence

tending to show a

reduced number of

miners affected.

7055606 104(a); 30 CFR

75.503

Non-S&S, Fatal, 1

miner

Moderate $190 Remains as issued,

$190.00.

33 FMSHRC Page 2328
CITATION

NO.

VIOLATION GRAVITY NEGLIGENCE PENALTY

ASSESSED

SETTLEMENT/

RATIONALE

7055607 104(a); 30 CFR

77.516

S&S, Fatal, 1 miner Moderate $946 Remains as issued,

$946.00.

7055608 104(a); 30 CFR

75.1714-7(a)

S&S, Fatal, 1 miner Moderate $946 Modified from 

Reasonably Likely to

Unlikely and to non

S&S with a

Negotiated Penalty of

$675.

*Respondent could

produce evidence

tending to

demonstrate the

reduced likelihood of

an accident.

7055610 104(a); 30 CFR

75.350(a)(2)

Non-S&S, Fatal, 6

miners

Moderate $392 Reduction in penalty

to $200.00. No

change to the violation

designation.

*Respondent could

produce evidence

tending to

demonstrate that even

though the negligence

was moderate, it was

not as high as

originally thought.

Based on this

information and due

to the risks of

litigation, the parties

agreed to the

negotiated penalty.

33 FMSHRC Page 2329
CITATION

NO.

VIOLATION GRAVITY NEGLIGENCE PENALTY

ASSESSED

SETTLEMENT/

RATIONALE

7055615 104(a); 30 CFR

75.350(a)(2)

Non-S&S, Fatal, 6

miners

Moderate $392 Reduction in penalty

to $300.00. No

change to the violation

designation.

*Respondent could

produce evidence

tending to

demonstrate that even

though the negligence

was moderate, it was

not as high as

originally thought.

Based on this

information and due

to the risks of

litigation, the parties

agreed to the

negotiated penalty.

7055612 104(a); 30 CFR

75.380(d)(7)(iv)

S&S, Fatal, 6

miners

Moderate $1944 The parties have

agreed to request a

STAY.

7055611 104(a); 30 CFR

75.370(a)(1)

Non-S&S, Lost

workdays/restricted

duty, 6 miners

Moderate $117 Reduction in penalty

to $100.00. No

change to the violation

designation.

*Respondent could

produce evidence

tending to

demonstrate that even

though the negligence

was moderate, it was

not as high as

originally thought.

Based on this

information and due

to the risks of

litigation, the parties

agreed to the

negotiated penalty.

33 FMSHRC Page 2330
CITATION

NO.

VIOLATION GRAVITY NEGLIGENCE PENALTY

ASSESSED

SETTLEMENT/

RATIONALE

7055616 104(a); 30 CFR

75.350(a)(2)

Non-S&S, Fatal, 6

miners

Moderate $392 Reduction in penalty

to $300.00. No

change to the violation

designation.

*Respondent could

produce evidence

tending to

demonstrate that even

though the negligence

was moderate, it was

not as high as

originally thought.

Based on this

information and due

to the risks of

litigation, the parties

agreed to the

negotiated penalty.

7055617 104(a); 30 CFR

75.204(c)(1)

Non-S&S, Fatal, 1

miner

Moderate $190 Remains as issued,

$190.00.

7021146 104(a); 30 CFR

75.220(a)(1)

Non-S&S, No lost

workdays, 0 miners

Low $100 Remains as issued,

$100.00.

Total $6,001 11 citations,

$3,101.00 as

modified and

stayed

Docket No. PENN 2009-667:

CITATION

NO.

VIOLATION GRAVITY NEGLIGENCE PENALTY

ASSESSED

SETTLEMENT/

RATIONALE

7054589 104(a); 30 CFR

75.370 (a)(1)

Non-S&S,

permanently

disabling, 8 miners

High $807 Modified from high

negligence to low

negligence with a

negotiated penalty

of $700.

*Respondent could

produce evidence

tending to

demonstrate a

reduced level of

negligence.

33 FMSHRC Page 2331
CITATION

NO.

VIOLATION GRAVITY NEGLIGENCE PENALTY

ASSESSED

SETTLEMENT/

RATIONALE

7055620 104(a); 30 CFR

75.1100-1(f)(2)

Non-S&S, unlikely, 

lost

workdays/restricted

duty, 6 miners

Moderate $117 Reduction in

penalty to $100.00. 

No change to the

violation

designation.

*Respondent could

produce evidence

tending to

demonstrate that

even though the

negligence was

moderate, it was

not as high as

originally thought.

Based on this

information and

due to the risks of

litigation, the

parties agreed to

the negotiated

penalty.

7055621 104(a); 30 CFR

75.604(b)

S&S, reasonably

likely, fatal, 1 miner

Moderate $946 Modified from

moderate

negligence to low

negligence with a

negotiated penalty

of $600.

*Respondent could

produce evidence

tending to

demonstrate a

reduced level of

negligence.

6685794 104(a); 30 CFR

75..370(a)(1)

Non-S&S, unlikely,

lost workdays/

restricted duty, 7

miners

Moderate $138 Vacated based on

prosecutorial

discretion.

33 FMSHRC Page 2332
CITATION

NO.

VIOLATION GRAVITY NEGLIGENCE PENALTY

ASSESSED

SETTLEMENT/

RATIONALE

7055625 104(a); 30 CFR

75.330(b)(1)

Non-S&S, unlikely,

fatal, 7 miners

Moderate $460 Reduction in

penalty to $350.00.

No change to the

violation

designation.

*Respondent could

produce evidence

tending to

demonstrate that

even though the

negligence was

moderate, it was

not as high as

originally thought.

Based on this

information and

due to the risks of

litigation, the

parties agreed to

the negotiated

penalty.

7054591 104(a); 30 CFR

70.205

Non-S&S, unlikely,

no lost workdays, 1

miner

Moderate $100 Remains as issued,

$100.

7055627 104(a); 30 CFR

77.502

S&S, reasonably

likely, fatal, 1 miner

Moderate $946 Modified from

moderate

negligence to low

negligence with a

negotiated penalty

of $700.

*Respondent could

produce evidence

tending to

demonstrate a

reduced level of

negligence.

7055628 104(a); 30 CFR

75.503

Non-S&S, unlikely,

fatal, 6 miners

Moderate $392 Remains as issued,

$392.

Total $3,906 8 citations,

$2942.00 as

modified

33 FMSHRC Page 2333
Docket No. PENN 2010-31:

CITATION

NO.

VIOLATION GRAVITY NEGLIGENCE PENALTY

ASSESSED

SETTLEMENT/

RATIONALE

 7055173 104(a); 30 CFR 

75.380(d)(7(iv)

Non-S&S, unlikely,

fatal, 10 miners

Moderate $1,203 The parties have

agreed to request a

STAY.

7055176 104(a); 30 CFR 

75.1600-3(a)(2)

Non-S&S, unlikely,

fatal, 2 miners

Moderate $263 Modified from fatal

to no lost workdays

with a negotiated

penalty of $100. 

*Respondent could

produce evidence

tending to

demonstrate a

lower level of

anticipated injury.

7055175 104(a); 30 CFR

75.380(d)(7)(iv)

S&S, reasonably

likely, fatal, 10

miners

Moderate $4,689 The parties have

agreed to request a

STAY.

7055177 104(a); 30 CFR

75.364(h) 

Non-S&S, no

likelihood, no lost

workdays, 0 miners

Low $100 Remains as issued,

$100.

Total $6,255 

Docket No. PENN 2010-310:

CITATION

NO.

VIOLATION GRAVITY NEGLIGENCE PENALTY

ASSESSED

SETTLEMENT/

RATIONALE

7056026 104(a); 30 CFR

75.220(a)(1)

S&S, reasonably

likely, fatal, 7

miners

Moderate $3,689 Reduced to 3

persons affected

with a negotiated

penalty of $2,200.

*Respondent could

present evidence

tending to show a

reduced number of

miners affected.

7056161 104(a); 30 CFR

75.325(b)

Non-S&S,

unlikely, fatal, 10

miners

Moderate $1,203 Remains as issued,

$1,203.

33 FMSHRC Page 2334
CITATION

NO.

VIOLATION GRAVITY NEGLIGENCE PENALTY

ASSESSED

SETTLEMENT/

RATIONALE

7056162 104(a); 30 CFR

75.1600-2(e)

Non-S&S,

unlikely, lost

workdays/

restricted duty, 10

miners

Moderate $362 Reduced to 5

persons affected,

with a negotiated

penalty of $200.

*Respondent could

present evidence

tending to show a

reduced number of

miners affected.

Total $5,254 3 citations,

$3,603.00 as

modified and

stayed

In summary, the settled citations in the five dockets at issue herein are as follows:

PENN 2009-548 $ 9,268.00

PENN 2009-595 3,101.00

PENN 2009-667 2,942.00

PENN 2010-31 200.00

PENN 2010-310 3,603.00

TOTAL $19,114.00

There are also four citations that the parties have requested be stayed. As these

four citations involve lifeline issues, I find that it is appropriate to stay these citations. 

See Cumberland Coal Resources LP, 31 FMSHRC 1147 (ALJ) (Sept. 2009)

I have considered the representations and documentation submitted and find that

the modifications above are reasonable and appropriate under the criteria set forth in

Section 110(i) of the Act. Consequently, I approve the parties’ negotiated settlement on

the above citations.

33 FMSHRC Page 2335
III. ORDER

Based on the above and the criteria in section 110(i) of the Mine Act, 30 U.S.C.§820(i), I

assess the penalties listed above for a total penalty of $21,162.00. RoxCoal, Inc. is hereby

ORDERED to pay the Secretary of Labor the sum of $21,162.00 within 30 days of the date of

this decision.

It is further ORDERED that Citation No. 7054090 (PENN 2009-548); Citation No.

7055612 (PENN 2009-595); and Citation Nos. 7055173 and 7055175 (PENN 2010-31) be

STAYED pending the Commission’s decision in Cumberland Coal Resources LP, 31 FMSHRC

1147 (ALJ) (Sept. 2009).

/s/ Janet G. Harner 

Janet G. Harner

Administrative Law Judge

Distribution: (First Class U.S. Mail and E-mail)

Najah A. Farley, Office of the Solicitor, U.S. Department of Labor, The Curtis Center, 

Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306

E-Mail: farley.najah.a@dol.gov

John M. Strawn, Office of the Solicitor, U.S. Department of Labor, The Curtis Center, 

Suite 630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306

E-Mail: 

Vincent J. Barbara, Esquire, Esquire, Barbera, Clapper, Beener, Rullo & Melvin, LLP, 146

West Main Street, P.O. Box 775, Somerset, PA 15501

E-Mail: vbarbera@bcbrm.com 

Melanie R. Barbara, Esquire, Esquire, Barbera, Clapper, Beener, Rullo & Melvin, LLP, 146

West Main Street, P.O. Box 775, Somerset, PA 15501

E-Mail: vbarbera@bcbrm.com 

33 FMSHRC Page 2336
1

 Because the August 31, 2010 Decision was not a final appealable order, I retained

jurisdiction and the record could be supplemented.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, DC 20001

Telephone: (202) 434-9958

Fax: (202) 434-9949

September 28, 2011

THOMAS BEWAK, : DISCRIMINATION PROCEEDING

Complainant, : Docket No. WEST 2008-161-DM

: 

v. :

:

ALASKA MECHANICAL, INC., : Nome Operations

Respondent : Mine ID 50-01850 LWI

DECISION

Before: Chief Judge Lesnick

This case is before me on a Complaint of Discrimination filed by Thomas Bewak

(“Bewak”) against Alaska Mechanical, Incorporated (“AMI”), pursuant to section 105(c) of the

Federal Mine Safety and Health Act of 1977 (“the Act”), 30 U.S.C. § 815(c). On August 31,

2010, I issued a decision granting the Complaint of Discrimination under section 105(c) of the

Act. Bewak v. Alaska Mechanical, Inc., 32 FMSHRC 1044. The decision also ordered the

parties “to confer to determine the appropriate back pay and interest to be awarded . . . and any

other relief required to make Bewak whole.” Id. at 1059.

On September 16, 2010, counsel for both parties submitted a Joint Response Regarding

Relief to Complainant, which stated that the parties were not able to agree to the amount of

relief. By Order dated September 27, 2010, I granted the request to submit briefs on damages.

AMI filed their brief regarding damages on October 12, 2010. Bewak filed his brief on October

14, 2010.

I held a conference call with the parties’ counsel on January 12, 2011, in an attempt to

resolve the issue of damages. I then gave the parties additional time to confer and reach a

settlement and held a follow-up conference call on January 25, 2011. Bewak then filed a

Request for Hearing on Damages on February 25, 2011, and AMI filed an opposition to Request

for Hearing on Damages on March 1, 2011.1

 Another conference call with parties’ counsel was

held on April 13, 2011, for purposes of setting a hearing date with regards to the issue of

damages. The hearing was set, with the agreement of both attorneys, for a date in August. 

AMI’s counsel subsequently informed me that a witness would not be available for the

scheduled hearing.

33 FMSHRC Page 2337
2

 Bewak was fired from AMI on July 25, 2007, and obtained new employment on

November 10, 2007.

On June 29, 2011, I issued an Order directing AMI to submit a written statement as to

how they believe due process can be achieved with respect to damages, and the time frame for

doing so. A Response was filed on July 14, 2011, in which AMI renewed its objection to a

hearing on damages and objected to adding to the record any post-hearing “evidence” regarding

damages. While AMI’s objections are noted, AMI was given several opportunities to rebut and

cross-examine Complainant’s evidence, including the holding of a hearing. However, AMI

failed to avail itself of any of these opportunities. Accordingly, I accept the facts regarding

damages as presented by Complainant.

Bewak is requesting “back pay, compensatory damages, attorney fees, and a proper

interest calculation on award.” Comp. Brief on Damages at 1. Specifically, Bewak is asking for

$46,004.00 in back pay for 15.5 weeks2

, $3,878.00 in job hunting expenses, $1,980.00 in costs

incurred during the hearing, $100,000.00 in damage to professional and personal reputation,

$100,000.00 for pain and suffering, and $19,327.00 in attorney fees for a total award of

$271,189.00 plus interest. See Comp. Brief on Damages. AMI argues that Mr. Bewak is entitled

to eight weeks of back pay in the amount of $19,712.00. Resp. Brief on Damages at 1, 3. While

AMI did not object to Bewak’s entitlement to attorney fees, it reserved the right to rebut the

amount and reasonableness. Resp. Brief at 4. To date, I have not received anything, written or

otherwise, rebutting the attorney fees claimed by Mr. Bewak. 

Section 105 of the Act grants the Commission authority, upon a finding of

discrimination, to grant appropriate relief “including, but not limited to, an order requiring the

rehiring or reinstatement of the miner of his former position with back pay and interest or such

remedy as may be appropriate.” 30 U.S.C. § 815(c). See also Secy. on behalf of Dunmire and

Estle v. Northern Coal Co., 4 FMSHRC 126 (February 1982).

As stated above, I accept the facts regarding damages as presented by Complainant and

find that $46,004.00 in back pay is a reasonable and fair calculation to restore the discriminatee,

as nearly as possible, “to the enjoyment of the wages and benefits [he] lost as a result of [his]

illegal termination[]” and to “effectuate the purposes of the Mine Act.” Id. at 142, 143. The

Commission has held that the “reimbursement of . . . hearing expenses is an appropriate form of

remedial relief.” Id. at 143. Therefore, I find that $1,980.00 for costs incurred during the

hearing is fair and reasonable and should be awarded to Complainant. Additionally, I find that

Complainant attempted to mitigate damages by seeking new employment and $3,878.00 in job

hunting expenses shall be awarded. I also find the requested attorney fees and expenses to be

fair and reasonable, and Complainant is hereby awarded $19,327.00 for those costs.

There is no authority or precedent for awarding compensatory damages for damage to

reputation and/or pain and suffering. Accordingly, the claims for $100,000.00 for damage to

professional and personal reputation, and $100,000.00 for pain and suffering are DENIED.

33 FMSHRC Page 2338
ORDER

AMI is hereby directed to pay to the Complainant, Mr. Thomas Bewak, within 30 days of

the date of this decision back pay, expenses, and attorney fees of $71,189.00, plus interest

through the date of payment to be calculated in accordance with the Commission decision in

United Mine Workers of America v. Clinchfield Coal Co., 10 FMSHRC 1493 (November 1988). 

/s/ Robert J. Lesnick 

Robert J. Lesnick

Chief Administrative Law Judge

Distribution: (Certified Mail)

Melinda D. Miles, Esq., Law Office of Melinda D. Miles, LLC, 634 S. Bailey Street, Suite 101,

Palmer, AK 99645

Thomas Bewak, P.O. Box 492, Sutton, AK 99674

Allen F. Clendaniel, Esq., Sedor, Wendlandt, Evans & Filippi, LLC, 500 L Street, Suite 500,

Anchorage, AK 99501

/amc

33 FMSHRC Page 2339
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

September 29, 2011

SECRETARY OF LABOR, : TEMPORARY REINSTATEMENT

 MINE SAFETY AND HEALTH : PROCEEDING

 ADMINISTRATION (MSHA), :

 on behalf of :

BURDETTE BILLINGS, : Docket No. LAKE 2011-855-DM

Complainant : NC MD 2011-08

:

v. :

:

:

PROPPANT SPECIALISTS, LLC, : Oakdale Wet Plant

Respondent : Mine ID 47-03569

ORDER GRANTING TEMPORARY ECONOMIC REINSTATEMENT

Before: Judge Bulluck

This matter is before me upon Application, filed by the Secretary on July 20, 2011,

pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§815(c)(2), for an order requiring Proppant Specialists, LLC (“Proppant”), to temporarily

reinstate Burdette Billings to his former position as a front-end loader operator, at Proppant's

Oakdale Wet Plant, or to a similar position at the same rate of pay. Section 105(c) prohibits

operators from discharging or otherwise discriminating against miners who have engaged in

safety-related protected activity, and authorizes the Secretary to apply to the Commission for

temporary reinstatement of miners, pending full resolution of the merits of their complaints. The

Application is supported by Declaration of MSHA Special Investigator Thomas J. Pavlat, and a

copy of the Discrimination Complaint filed by Billings with MSHA on May 9, 2011. The

Application alleges that Billings was terminated by Proppant because he filed a hazardous

condition complaint with MSHA.

Proppant elected to waive its right to a hearing, and on September 2, 2011, both parties

filed simultaneous briefs. The parties have agreed to temporary economic reinstatement should I

grant the Application. Proppant’s Opposition denies that Billings had been terminated for any

discriminatory reason, and is supported by Declaration of Chris E. Cummins, Senior Vice

President of Frac Tech Services, LLC, Proppant’s parent company.

Procedural Framework

The scope of this proceeding is governed by the provisions of Commission Rule 45(c), 29

C.F.R. § 2700.45(c), which limits the inquiry to a “not frivolously brought” standard, by

providing that “[i]f no hearing is requested, the Judge assigned the matter shall review

immediately the Secretary's application and, if based on the contents thereof the Judge

33 FMSHRC Page 2340
determines that the miner's complaint was not frivolously brought, he shall issue immediately a

written order of temporary reinstatement.”

It is well settled that the “not frivolously brought” standard is entirely different from the

scrutiny applicable to a trial on the merits of the underlying discrimination complaint. In Jim

Walter Resources v. FMSHRC, 920 F.2d 738 (11th Cir. 1990), the Court explained the standard

as follows:

The legislative history of the Act defines the ‘not frivolously brought

standard’ as indicating whether a miner's ‘complaint appears to have merit’ -- an

interpretation that is strikingly similar to a reasonable cause standard. [Citation

omitted]. In a similar context involving the propriety of agency actions seeking

temporary relief, the former 5th Circuit construed the ‘reasonable cause to

believe’ standard as meaning whether an agency's ‘theories of law and fact are not

insubstantial or frivolous.’ 920 F.2d at 747 (emphasis in original) (citations

omitted).

. . . Congress, in enacting the ‘not frivolously brought’ standard, clearly

intended that employers should bear a proportionately greater burden of the risk

of an erroneous decision in a temporary reinstatement proceeding. Any material

loss from a mistaken decision to temporarily reinstate a worker is slight; the

employer continues to retain the services of the miner pending a final decision on

the merits. Also, the erroneous deprivation of the employer's right to control the

makeup of his work force under section 105(c) is only a temporary one that can

be rectified by the Secretary's decision not to bring a formal complaint or a

decision on the merits in the employer's favor. Id. at 748, n. 11 (emphasis in

original).

Ruling

The Mine Act accords to miners and miners' representatives protection from discharge or

other discriminatory acts, based on their exercise of any statutory right under the Act. 30 U.S.C.

§ 815(c). The Commission has consistently held a miner seeking to establish a prima facie case

of discrimination to proving that he engaged in activity protected by the Act, and that he suffered

adverse action as a result of the protected activity. Secretary on behalf of Pasula v.

Consolidation Coal Company, 2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other

grounds sub nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3rd Cir. 1981);

Secretary on behalf of Robinette v. United Coal Company, 3 FMSHRC 803, 817-18 (April

1981).

The Secretary’s allegations are based, in part, on Inspector Pavlat’s investigation of

Billings’ discrimination claims. Based on his investigation, Pavlat found: 1) that prior to his

filing a hazard complaint with MSHA, Billings spoke with Brandon Crawford, Acting Regional

Manager, about the hazardous condition created by hot sand; 2) that Todd Rainey, Production

Supervisor, was in charge at the Oakdale Wet Plant at the time and was well aware of the

hazardous situation; 3) that Billings filed his hazard complaint with MSHA on Saturday, April

33 FMSHRC Page 2341
23, 2011, when nothing was done to correct the hot sand hazard; 4) that Supervisory MSHA

Inspector Christopher Hensler in Hibbing, Minnesota, spoke with Billings no later than April 25,

2011, to follow up on his hazard complaint, at which time Billings told Hensler about his prior

conversation with Crawford, and that Rainey was aware of the situation; 5) that on April 25,

2011, MSHA Inspector Robert Marcinel went to the Oakdale Wet Plant to commence an

investigation of Billings’ complaint, during which Inspector Marcinel interviewed Billings; 6)

that on April 27, 2011, Inspector Marcinel finished his inspection, held his closing conference

with Crawford and Regional Safety Manager Jesse McAnally, and issued four 104(d)(1) high

negligence citations to Proppant, including two relating to miners who were standing in or

walking through hot sand; 7) that at the April 27, 2011, closeout conference, Inspector Marcinel

told Crawford and McAnally that the citations would be reviewed for possible special

assessment and a possible determination that the violations were knowing and/or willful; 8) that

on April 28, 2011, Proppant discharged Billings and gave him an “Employee

Counseling/Disciplinary Action Form” listing four reasons for his discharge; 9) that Crawford

signed the form as “Supervisor” and Chris E. Cummins signed the form as “District or

Department Manager;” 10) that a day or two after the MSHA inspection, Crawford and Rainey

asked an Oakdale Wet Plant employee whether he knew who made the hazard complaint to

MSHA (either Crawford or Rainey said they knew the complainant was either that employee or

Billings, and that it was a process of elimination); the employee denied making the hazard

complaint and Crawford responded that if the employee did not make the complaint, then they

knew who did; and 11) that other company employees who have reported hazardous conditions

or filed hazard complaints with MSHA have suffered adverse action. Sec’y. Brief, Pavlat Aff. 

Based on these findings, Pavlat concluded that Billings’ allegation that he was terminated

because he filed a hazard complaint with MSHA was not frivolous.

Proppant’s Opposition seeks to establish that the Discrimination Complaint was

frivolously brought by asserting, in part: 1) that Chris E. Cummins is responsible for overseeing

the operations of the mine; 2) that on April 28, 2011, Cummins traveled to the mine to follow up

on reports of a disturbance caused by a mine employee at a local township council meeting; 3)

that prior to his arrival at the mine, Cummins had never heard of Burdette Billings and when he

arrived, Cummins learned that there were concerns about recent actions by Billings; 4) that the

disciplinary form given to Billings set forth four instances of violations of company policy; 5)

that Cummins did speak to other Proppant employees, both hourly and management, to discuss

the factual details of the events described in the disciplinary form; 6) that Cummins decided to

terminate Billings’ employment based upon the actions described in the disciplinary form, and

without consulting anyone else as to the appropriate level of discipline to be administered; and 7)

that Cummins was not aware that the April 25, 2011, MSHA inspection resulted from an

anonymous complaint, nor did he know which, if any, miners spoke to the MSHA inspector. 

Resp. Opp. at 1-3. Proppant concludes, therefore, that the decision to terminate Billings was

based solely on the four instances of misconduct described in the disciplinary form, and Billings

was not terminated because of his hazard complaint to MSHA.

While I have carefully considered Proppant's opposition, because it has waived its right

to a hearing on the Secretary's Application, I must accept as true, the events, as alleged. The

Secretary has set forth allegations of adverse treatment, close in proximity to protected activity

so as to create a nexus, sufficient to raise an inference of discrimination. At best, Proppant has

33 FMSHRC Page 2342
shown an intent to defend its actions at hearing, on the basis of legitimate business-related,

non-discriminatory reasons. At this juncture, it is emphasized that, at hearing, the Secretary

ultimately bears the burden of proving discrimination by a preponderance of the evidence, in

order to sustain a violation under section 105(c). Accordingly, since the allegations of

discrimination, as set forth in the Secretary's Application, have not been shown to be clearly

lacking in merit, it must be concluded that they are not frivolous and, therefore, satisfy the lesser

threshold in this proceeding.

ORDER

For the reasons set forth above, it is ORDERED that Proppant Specialists, LLC

temporarily economically reinstate Burdette Billings, by agreement of the parties, retroactive to

August 8, 2011, to the position he held prior to his termination on April 28, 2011, at the same

rate of pay and benefits applicable to that position.

_/s/ Jacqueline R. Bulluck___________

Jacqueline R. Bulluck

Administrative Law Judge

Distribution (Certified):

Eileen R. Hurley, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St.,

Suite 844, Chicago, IL 60604

Mark N. Savit, Esq., Patton Boggs LLP, 1801 California Street, Suite 4900, Denver, CO 80202

/amc

33 FMSHRC Page 2343
33 FMSHRC Page 2344
ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON, D.C. 20001

(202) 434-9950

September 7, 2011

SECRETARY OF LABOR, MINE SAFETY : CIVIL PENALTY PROCEEDING

AND HEALTH ADMINISTRATION, :

(MSHA), : Docket No. WEST 2011-896

Petitioner : A.C. No. 42-02074-250382

 :

v. :

 : 

HIDDEN SPLENDOR RESOURCES, INC., : Mine: Horizon Mine

 Respondent :

ORDER DENYING RESPONDENT’S MOTION TO COMPEL DISCOVERY

This case is before me upon a Petition for Assessment of Civil Penalty under section 105

(d) of the Federal Mine Act of 1977 (“the Mine Act”), 30 U.S.C. §815(d). On August 25, 2011,

Respondent filed its “Motion to Compel Production of SAR FORM.” The Secretary refused to

provide the Special Assessment Review (“SAR”) document invoking the deliberative process

privilege. A telephone conference was held by me on September 6, 2011 during which counsel

argued the motion. Respondent asserts that although formal discovery had not been engaged in,

the SAR would likely contain information that would likely lead to discovery of relevant facts. 

Specifically, when asked what facts would not otherwise be discoverable through formal

discovery not yet engaged in, counsel responded that the conclusions reached by the agency

would be contained in the SAR along with contemporaneous recommendations made by officials

of the Mine Safety and Health Administration (“MSHA”). For the reasons set forth below, the

motion is DENIED.

I. The Work Product Privilege

Commission Procedural Rule 1(b), incorporates the Federal Rules of Civil Procedure, so far

as practicable, on any procedural question not regulated by the Mine Act, the Commission’s

Procedural Rules, or the Administrative Procedure Act. Rule 26(b)(3) of the Federal Rules

of Civil Procedure provides in relevant part:

[A] party may obtain discovery of documents and tangible things otherwise discoverable

under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial

by or for another part or by or for that other party’s representative (including the other

party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing

that the party seeking discovery has substantial need of the materials in the preparation of

the party’s case and that the party is unable without undue hardship to obtain the

33 FMSHRC Page 2345
substantial equivalent of the materials by other means, in ordering discovery of such

materials when the required showing has been made, the court shall protect against

disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney

or other representative of a party concerning the litigation.

In ASARCO, Inc., 12 FMSHRC 2548 (December 1990), the Commission discussed the

work-product privilege under Rule 26(b)(3), (within which the deliberative process privilege is

embodied), stating that the material sought in discovery must be: 1) documents or tangible

things, 2) prepared in anticipation of litigation or for trial, and 3) by or for another party or by or

for that party’s representative. It is not required that the document be prepared by or for an

attorney. The burden is on the party seeking to invoke the privilege, to demonstrate the threepart test has been met, however, once that has been satisfied, the burden is then on the party

seeking discovery to demonstrate a substantial need and undue hardship to overcome the

privilege. P & B Marina, Ltd Partnership v. Logrande, 136 F.R.D. 50, 57 (E.D.N.Y. 1991),

aff’d, 983 F.2d 1047m (2d Cir. 992). 

The SAR is a document which contains the selected facts pertaining to a cited violation

of a health or safety standard along with the mental impressions, conclusions and opinions of

MSHA officials used in the determination to categorize the violations as flagrant, and thus

enhancing the penalties assessed. While this deliberative process is engaged in at a time when

litigation is not pending, it is readily foreseeable that should the special assessment be imposed,

the operator is highly likely to contest the penalty. Furthermore, once the enhanced penalty is

decided upon, the operator is served with a notice of the proposed penalty and is given 30 days

to pay or contest the proposed penalty. 30 C.F.R. §100.7(b). Therefore, this document is

prepared in contemplation of litigation and is protected by the work product privilege. 

Turning now to whether Hidden Splendor can overcome the privilege by demonstrating a

substantial need for the information and an undue hardship if it must obtain the information by

other means, Hidden Splendor fails in its attempt to do so. The Respondent has not yet engaged

in any formal discovery provided under the Commission rules. They, therefore, cannot at this

time, state that interrogatories, requests for admissions, or depositions would fail to provide them

with the relevant information pertaining to these violations at issue. Furthermore, as the

Respondent stated during the conference call, they seek the “conclusions” and the

“contemporaneous recommendations,” which are no more than mental impressions of the MSHA

officials, contained in this document. As stated above, the court shall protect against the

disclosure of mental impressions, conclusions and opinions. For these reasons, I find Hidden

Splendor has not overcome the work product privilege. 

It is clear to me that the Respondent is not interested in obtaining the facts in support of

these violations, but is interested in reaching the inner workings or the deliberative process by

which MSHA determines the special assessments. This leads me to the second basis for denial

of the Respondent’s motion to compel disclosure.

II. The Deliberative Process Privilege

The deliberative process privilege was first described by the Commission in In Re:

Contestants of Respirable Dust Sample Alteration Citations, 14 FMSHRC 987, 990-93 (June

1992)as protecting “the ‘consultative functions’ of government by maintaining the

33 FMSHRC Page 2346
confidentiality of ‘advisory opinions, recommendations and deliberations comprising part of a

process by which governmental decisions and policies are formulated’ (citations omitted). The

privilege attaches to inter- and interagency (sic) communications that are part of the deliberative

process preceding the adoption and promulgation of an agency policy.” Id. at 992 (quoting

Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 772 (D.C. Cir. 1978)). The privilege protects

thoughts, ideas, reasoning and analyses which lead to a decision of the agency. Kan. State

Network, Inc. v. F.C.C., 720 F.2d 185 (D.C. Cir. 1983).

As already discussed, the Respondent specifically argued that it was the conclusions and

contemporaneous recommendations that it seeks through disclosure of the SAR, not the facts.

Clearly they are seeking disclosure of the deliberative process involved in the special

assessment. Not only are these mental impressions protected by the privilege, but they are also

irrelevant in the de novo determination by the Administrative Law Judge at hearing. 

Respondent further argued that the privilege was not invoked by the head of the agency and

is therefore not properly raised here. The Commission, however, permits such assertions

through counsel under the delegation of authority. See Bright Coal Comp., 6 FMSHRC 2520

(Nov. 1984).

For the reasons set forth above, the Respondent’s Motion to Compel is hereby DENIED.

/s/ Priscilla M. Rae 

Priscilla M. Rae

Administrative Law Judge

Distribution:

Kristi L. Henes, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite

1600, Denver, CO 80202

Brian E. Barner, Esq., Crowell & Morning LLP, 1001 Pennsylvania Ave., N.W., Washington,

DC 20004-2595

33 FMSHRC Page 2347
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001

September 9, 2011

MAMMOTH COAL CO., : CONTEST PROCEEDINGS

Contestant : 

 : Docket No. WEVA 2009-888-R

 : Citation No. 8076518; 02/25/2009

v. :

 : Docket No. WEVA 2009-889-R

 : Order No. 8076519; 02/25/2009

SECRETARY OF LABOR, : 

 MINE SAFETY AND HEALTH : Docket No. WEVA 2009-894-R

 ADMINISTRATION (MSHA), : Order No. 8076638; 03/02/2009

Respondent :

 : Mine: Mammoth No. 2 Gas

 : Mine ID 46-09108

 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. WEVA 2009-1295

 Petitioner : A.C. No. 46-09108-179898-01

 :

v. : 

 :

MAMMOTH COAL CO., : Mine: Mammoth No. 2 Gas

Respondent : 

ORDER DENYING RESPONDENT’S MOTION 

FOR INTERLOCUTORY REVIEW CERTIFICATION

AND

FOR STAY

These matters are scheduled for hearing on September 13, 2011, in Charleston, 

West Virginia. At issue are 104(d)(1) Citation No. 8076518 and 104(d)(1) Order No. 

8076519 issued to Mammoth Coal Company (“Mammoth”). The citation and order 

concern the fundamental requirement in section 75.380(d)(1) that requires escapeways to 

be “[m]aintained in a safe condition to always assure passage of anyone, including disabled

persons.” The Secretary initially filed a Petition for Assessment of Civil Penalty proposing 

a total civil penalty of $133,000.00 for the subject citation and order.

33 FMSHRC Page 2348
1

 Section 110(b)(2) of the Act provides that a mine operator who commits a violation

deemed to be “flagrant” may be assessed a civil penalty of not more than $220,000. Section

110(b)(2) defines “flagrant” as “a reckless or repeated failure to make reasonable efforts to

eliminate a known violation of a mandatory health or safety standard that substantially and

proximately caused, or reasonably could have been expected to cause, death or serious bodily

injury.” 

I. Procedural History

Based on information obtained during discovery, the Secretary filed a motion to 

amend her assessment petition by increasing the total proposed penalty from $133,000.00 

to $335,200.00. The proposed amendment was based on the allegation that the subject 

two violations were “flagrant” as contemplated by Section 110(b)(2) of the Mine Act as 

amended by the Mine Improvement and New Emergency Response Act of 2006 (“the Act”), 

30 U.S.C. § 820(b)(2).1

 The Secretary’s motion to amend her petition was granted by Order 

on June 3, 2011. The Order noted there was no showing of prejudice as the underlying facts 

and the violations alleged remained unchanged. Wyoming Fuel, 14 FMSHRC 1282, 1289-90 

(Aug. 1992), citing Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 1990) (pleadings may 

be liberally modified under Federal Rule of Civil Procedure 15(a) absent a showing of legal

prejudice to the party opposing the modification).

Subsequent to the June 3, 2011, Order Modifying the Secretary’s Petition, Mammoth

unsuccessfully attempted to withdraw its contests by paying the $133,000.00 initially proposed

by the Secretary. The Commission has determined that a mine operator may not unilaterally

withdraw its contest in a civil penalty proceeding by offering to pay the original assessment

proposed by the Secretary. Consolidation Coal Company, 2 FMSHRC 3 (Jan. 1980). Rather,

the Commission has concluded that the Secretary’s request for a higher penalty than that initially

proposed is a triable issue to be resolved by the statutory penalty criteria. Id. at 5.

II. Mammoth’s Request for Interlocutory Review

On September 8, 2011, Mammoth filed, pursuant to Commission procedural Rule 76, 

a Motion to Stay Proceedings and for Certification for Interlocutory Review of the June 3, 2011,

Order granting the Secretary’s motion to amend her petition. 29 C.F.R. § 2700.76. Mammoth’s

request for interlocutory review is based on its assertion that the grant of the Secretary’s

amended petition constitutes a modification “of the original civil penalty assessment prior to the

required de novo review of the relevant evidence to be applied to the statutory criteria in 30

U.S.C. § 820(i) (Mine Act § 110(i)) (“§820(i)” or “§110(i)”).” Mammoth Mot. at 1. 

33 FMSHRC Page 2349
The Secretary opposed Mammoth’s motion on September 9, 2011. The Secretary’s

opposition is based on her assertion that Mammoth “has not properly phrased the legal issue for

which it seeks review.” Sec’y Opp. at 2. The Secretary notes that the grant of her motion to 

amend her petition was not a modification of “the original civil penalty assessment” as

contended by Mammoth. Id. at 3. In this regard, the Secretary summarized the relevant

procedural history: “the Administrative Law Judge did not elevate the penalties. He merely

permitted the Secretary to amend her Petition to seek higher proposed penalties.” Id. at 4, fn.4

(emphasis in original). 

Under Rule 76, interlocutory review is appropriate when the review sought involves a

controlling question of law, and immediate review will materially advance the final disposition

of the proceeding. Sections 105(a) and 110(a) of the Act empower the Secretary to propose civil

penalties. 30 U.S.C. §§ 815(a) and 820(a). Section 110(i) of the Act delegates the de novo

authority of the Commission to assess civil penalties. 30 U.S.C. § 820(i); See also Douglas R.

Rushford Trucking, 22 FMSHRC 598, 600 (May 2000). The authorities delegated by the Act to

the Secretary and the Commission with respect to the imposition of civil penalties are separate

and distinct. The Commission’s statutory de novo authority to assess civil penalties in contested

cases does not preclude, or otherwise restrict, the exercise of the Secretary’s statutory authority

to amend the penalties she seeks to impose. 

ORDER

Thus, given the unambiguous statutory provisions and case law noted above, the issues

raised by Mammoth present neither a novel nor controlling question of law. The Secretary may

modify her initial civil penalty proposal at any time prior or subsequent to a Commission hearing

on the merits. Consolidation Coal, 2 FMSHRC at 5; See also Spartan Mining Co., Inc., 

29 FMSHRC 465, 467 (June 2007) (ALJ) (Sec’y proposing to increase the civil penalty in her 

post-hearing brief). Consequently Mammoth has not presented any controlling question of law 

for which immediate review is required or otherwise appropriate. As such, IT IS ORDERED 

that Mammoth’s Motion for Certification for Interlocutory Review IS DENIED.

Accordingly, IT IS FURTHER ORDERED that Mammoth’s Motion to Stay the 

hearing in these matters IS ALSO DENIED. Absent any contrary direction by the Commission 

in the event Mammoth seeks its review, the trial proceedings will commence at 9:00 a.m. on

Tuesday, September 13, 2011, at the U.S. Federal Courthouse, Room B 6200, 300 Virginia

Street, Charleston, West Virginia.

 _/s/ Jerold Feldman_____________

 Jerold Feldman

 Administrative Law Judge

33 FMSHRC Page 2350
Distribution: (Electronic Mail)

Jennifer K. Welsh, Esq., U.S. Department of Labor, Office of the Solicitor, The Curtis Center, 

Suite 630 East, 170 S. Independence Mall West, Philadelphia, PA 19106-3306

Curtis R. A. Capehart, Esq., and Olen L.York, III, Esq., Dinsmore & Shohl LLP, Huntington

Square, 900 Lee Street, Suite 600, Charleston, WV 25301

/jel

33 FMSHRC Page 2351
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N. W., SUITE 9500

WASHINGTON, D.C. 20001

September 21, 2011

 :

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS

MINE SAFETY AND HEALTH :

ADMINISTRATION, (MSHA), : Docket No. LAKE 2008-666

Petitioner : A.C. No. 11-02752-161958

 :

 : Docket No. LAKE 2008-667

 : A.C. No. 11-02752-161939

 :

v. : Docket No. LAKE 2009-6 A

 : A.C. No. 11-02752-162890-01

 :

AMERICAN COAL COMPANY, :

Respondent :

 : Mine: Galatia Mine

 

ORDER GRANTING IN PART

RESPONDENT’S MOTION TO COMPEL 

These cases are before me upon Petitions for Assessment of Civil Penalty under section

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

August 15, 2011 Respondent filed a Motion to Compel asserting that the Secretary’s refusal to

produce certain documents sought in discovery is based on an improper invocation of the various

asserted privileges. The Secretary filed her response on September 19, 2011 and, in a subsequent

conference call, the Secretary was directed to produce the documents at issue for in camera review

by the undersigned judge. Those documents were produced on September 20, 2011. For the reasons

that follow, the Motion to Compel is granted in part. Additional information is required in order to

rule further on the motion. 

The Special Assessment Review Forms

The Secretary maintains that the Special Assessment Review Forms are protected from

disclosure by the deliberative process privilege. In In re: Contests Respirable Dust Sample

Alteration Citations, 14 FMSHRC 987, 990-93 (June 1992), the Commission described the scope

of the deliberative process privilege as follows:

This privilege protects the consultative functions of government by maintaining the

confidentiality of “advisory opinions, recommendation and deliberations comprising

parts of a process by which governmental decisions and policies are formulated. The

privilege attaches to inter-and intragency [sic] communications that are part of the

deliberative process preceding the adoption and promulgation of an agency policy.

Id at 992 (quoting Jordan v. U.S. Dep’t of Justice, 591 F. 2d 753, 772 (D.C. Cir. 1978)).

While the documents sought to be protected must ordinarily be pre-decisional, Id at 992, a

document that is pre-decisional at the time of its creation can lose that status if it is adopted formally

33 FMSHRC Page 2352
1

 A memorandum from Regional Solicitor Gestrin to District Manager Phillips 

purportedly dated April 18, 2008 and purportedly consisting of twelve pages is actually dated

June 6, 2008 and consists of fourteen pages.

or informally, as the agency position on an issue or is used by the agency in its dealings with the

public. Coastal States Gas Corp., v. Dep’t of Energy, 617 F.2d 854 at 866 (D.C. Cir. 1980); Sec’y

of Labor v. Webster County Coal, LLC, 2004 WL 904753, at *1 (FMSHRC February 23, 2004)

(ALJ). In N.L.R.B.v. Sears, Roebuck & Company, 421 U.S. 132, 151-52 (1975), the Supreme Court

noted when the position is adopted by the agency, “the reasoning becomes that of the agency and

becomes its responsibility to defend.” 421 U.S. at 161. The Court further recognized that the purpose

of the deliberative process privilege of encouraging frank communication in order to effectuate

better decisions is served because, “agency employees will generally be encouraged rather than

discouraged by public knowledge that their policy suggestions have been adopted by the agency.”

Id.

Within this framework of law, I therefore find that the documents identified as Special

Assessment Review Forms, submitted for my in camera review are all outside the ambit of the

deliberative process privilege because the positions taken in the documents were adopted as the

agency’s position regarding the charging documents at issue.

I further note that, in particular, the documents identified as Special Assessment Review

Forms contain the inspector’s factual basis for his recommendations to the Secretary. The

Commission has recognized that “purely factual material that does not expose an agency’s decision

making process does not come within the ambit of privilege.” Dust cases, 14 FMSHRC at 993.

Moreover, upon the Secretary’s acceptance by issuing citations, the inspector’s recommendations

and those of his supervisors become the agency’s position and any claim to the deliberative process

privilege is thereby lost. CDK Contracting Co., v. Sec’y of Labor, 25 FMSHRC 88, 90 (Feb. 2003)

(ALJ), Aggregate Industries v. Sec’y, 25 FMSHRC 88,90 (Feb. 2003) (ALJ).

Accordingly, while I am today returning to counsel for the Secretary by Federal Express

overnight delivery all of the documents submitted to me for in camera review, I direct that copies

of all of the documents identified as Special Assessment Review Forms be provided to Respondent

forthwith.

The Memoranda

The Secretary has further provided for in camera review eight memoranda she claims are

protected from disclosure under the attorney-client, work product and deliberative process

privileges1

. While it appears that the former two privileges may apply to these documents, additional

evidence is necessary before a definitive ruling can be made i.e. whether the documents were

prepared in anticipation of litigation or trial for purposes of the work product privilege and whether

the criteria for the attorney-client privilege has been met, namely: (1) the asserted holder of the

privilege is or sought to become a client; (2) the person to whom the communication was made (a)

is a member of the bar of a court or his subordinate and (b) in connection with this communication

is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a)

33 FMSHRC Page 2353
by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i)

an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for

the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not

waived by the client.” See Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998)(citing U.S. v. Jones,

696 F.2d 1069, 1072 (4th Cir. 1982).

Under the circumstances, I cannot now make findings on the privileges claimed by the

Secretary to bar disclosure of the noted memoranda. The Secretary may provide the additional

evidence by affidavit to support her claimed privileges but must do so on or before September 26,

2011.

_/s/ Gary Melick________________

Gary Melick

Administrative Law Judge

202-434-9977

Distribution:(By Certified Mail)

Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, 8th Floor, 230 S.

Dearborn Street, Chicago, IL 60604

Travis Gosselin, Esq., Office of the Solicitor, U.S. Department of Labor, 8th Floor, 230 S.

Dearborn Street, Chicago, IL 60604

Jason W. Hardin and Mark E. Kittrell, Esq., Fabian & Clendenin, 215 South State Street, Suite

1200, Salt Lake City, UT 84111-2323

/to

33 FMSHRC Page 2354
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958/ FAX: 202-434-9949

September 22, 2011

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner

v.

 

GRAND EAGLE MINING, INC., 

 Respondent

 :

 :

 :

 :

 :

 :

 :

 :

 :

CIVIL PENALTY PROCEEDING

Docket No. KENT 2009-1118

A.C. No. 15-19011-184115

Mine: Grand Eagle Prep Plant

ORDER DENYING PETITIONER’S MOTION 

FOR SIMPLIFIED PROCEEDINGS

This case is before me on a Petition for Assessment of Civil Penalty under section 105(d)

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

Secretary has filed a Motion to Designate for Simplified Proceedings claiming that the docket

fits the criteria set forth in Commission Procedural Rule 101 for simplified proceedings

designation. 29 C.F.R. § 2700.101. Respondent has filed a motion in opposition. For the

following reasons, I deny the Secretary’s motion.

Factual and Procedural Background

On March 10, 2009, MSHA inspector Keith Ryan inspected Grand Eagle Mining, Inc.’s

Grand Eagle Prep Plant mine. Ryan completed a contested search of a electrician’s personal

vehicle, a Dodge Ram 1500 truck, that was located on mine property, and then issued Citation

No. 8494369 finding that the truck was not provided with a usable fire extinguisher that had a

current examination. 

On May 20, 2010, the Secretary filed a Petition for Assessment of Civil Penalty for $100

pursuant to Section 104(a) of the Act. On June 10, 2010, a timely Answer was filed by the

Respondent along with request for discovery.

On January 20, 2011, I issued a Pre-Hearing Order directing the parties to begin

settlement negotiations and report back to me within 60 days. On July 14, 2011, I convened a

conference call with the parties. The Secretary claimed that the inspection of the truck was valid

and lawful because the Respondent gave the owner a “travel stipend.” Respondent claimed that

the “search” was an unreasonable search and seizure under the Fourth Amendment. Any

stipulated facts or Motion for Simplified Proceedings were due on August 1, 2011.

On July 28, 2011, the Secretary submitted the instant Motion to Designate for Simplified

Proceedings and a Request for Subpoena Duces Tecum. On August 5, 2011, the Respondent

submitted its Response in Opposition.

33 FMSHRC Page 2355
Disposition

The Secretary’s argues that Docket No. KENT 2009-1118 meets the criteria set forth in

Commission Rule 101 regarding Designation for Simplified Proceedings. 29 C.F.R. § 2700.101. 

Rule 101 requires that cases designated for Simplified Proceedings not involve fatalities,

injuries, or illnesses, and generally include one or more of the following characteristics: the case

involves 104(a) citations issued under the Mine Act; the proposed penalties are not specially

assessed under 30 CFR 100.5; the case does not involve complex issues of law or fact; the case

only involves a limited number of citations to be determined by the Judge; the case involves a

limited penalty amount; the case involves a hearing of limited duration; the case does not involve

only legal issues; and the case does not involve any expert witnesses. 29 C.F.R. § 2700.101. 

Although most of these criteria are met here, the Respondent issued discovery before the

Secretary requested the simplified proceedings designation. In addition, the constitutional issue

raised by the Respondent is arguably a complex issue of law that militates against Docket No.

KENT 2009-1118 being designated as a simplified proceeding. In addition, it is unclear whether

a personal automobile on mine property or used by a miner to perform certain tasks is covered by

30 C.F.R. § 77.1110 dealing with examination and maintenance of firefighting equipment, as set

forth in Subpart L entitled “Fire Protection.” Cf. Empire Iron Mining Partnership, 19 FMSHRC

1912, 1923 (Dec. 1997) (Judge Hodgdon) (describing issue of whether standard covered miner’s

failure to maintain control of personal vehicle on mine property as one of first impression). In

these circumstances, I find it inappropriate to designate this matter for simplified proceedings at

this juncture. 

In light of the foregoing, the Secretary’s Motion to Designate for Simplified Proceedings

is DENIED.

/s/ Thomas P. McCarthy 

Thomas P. McCarthy

 Administrative Law Judge

Distribution:

John A. Mulvey, Esq., U. S. Department of Labor, Office of the Solicitor, 618 Church Street,

Suite 230, Nashville, Tennessee 37219

Jeffrey Phillips, Esq., Steptoe & Johnson, P.O. Box 910810, Lexington, KY 40591

 /ld

33 FMSHRC Page 2356